T-2905-85
Christie Stuart MacDonald (Applicant)
v .
National Parole Board (Respondent)
INDEXED AS: MACDONALD V. NATIONAL PAROLE BOARD
Trial Division, Muldoon J.—Vancouver, March
17, 1986.
Parole — Day parole denied — Serving long sentence for
serious offence — Case management team recommending day
parole — Board of view maximum benefit from incarceration
not gained — Concerned as to drug involvement in institution
and risk of further offences — Board decision not reversed by
Court if within jurisdiction — No unreasonable exercise of
discretion — Neither Bill of Rights nor Charter requiring oral
hearing of day parole request — No accuser to be faced by
applicant — No information concealed — Appropriateness of
decision-making process to be viewed in light of statutory
scheme — S. 11 of Act not entitling day parole applicant to
personal interview — Fundamental justice principles not
transgressed — Convict not having sought re-examination of
denial by Appeal Committee of Board — Court not granting
discretionary relief where other remedies not exhausted —
Parole Act, R.S.C. 1970, c. P-2, ss. 6, 11.
Constitutional law — Charter of Rights — Life, liberty and
security — Day parole denial — Whether fundamental justice
principles demanding oral hearing — Statutory source of
alleged rights to be identified — Lawful sentence of imprison
ment — Parole Act and Regulations — Applicant's written
request and favourable progress reports only materials con
sidered — No accuser to be faced — Withholding of condi
tional liberty less serious than revocation — Statutory scheme
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.), s. 7.
Bill of Rights — Right to fair hearing — Whether convict
entitled to oral hearing upon day parole request — Decision of
Supreme Court of Canada in Singh et al. v. Minister of
Employment and Immigration considered — Statutory scheme
important factor — No accuser faced by applicant — No
material withheld — Case within exceptions in Singh —
Denial of conditional liberty less serious than revocation —
Requirements of Bill of Rights satisfied — Canadian Bill of
Rights, R.S.C. 1970, Appendix III, s. 1(a).
Judicial review — Prerogative writs — Certiorari or man-
damus sought by convict denied day parole — On mandamus
application Court may not assess evidence before Board —
Court may not reverse Board if acting within jurisdiction —
No unreasonable exercise of discretion — Fundamental justice
principles not requiring oral hearing of day parole request —
No request to Appeal Committee of Board for re-examination
of denial — Court denying discretionary relief where other
remedies not exhausted — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 18.
Practice — Representation by attorney or solicitor — Con
vict seeking judicial review of day parole denial — Invoking
R. 324 to place written complaints before Court for adjudica
tion — Case involving liberty and constitutional issue —
Matters of gravest import — Whether to be dealt with without
oral hearing — Everyone in compliance with Rules having
right of audience — Even some lawyers ineffective in oral
submissions — Applicant not compelled to be represented by
counsel — Expedient that motion be disposed of without
attendance of parties or solicitors — Federal Court Rules,
C.R.C., c. 663, R. 324.
This is an application for certiorari quashing a decision of
the respondent Board denying the applicant day parole, or for
mandamus requiring the respondent to render a decision grant
ing day parole, or for an order requiring an oral hearing. The
application is pursuant to section 18 of the Federal Court Act
and Rule 324.
An application for day parole was denied without a personal
interview. The Board considered the case management team's
recommendation for day parole, but was concerned that the
applicant might re-offend. It also considered the Trial Judge's
decision at the sentencing hearing, and all the factors listed by
the applicant. The reason for refusal was that the applicant was
serving a relatively long sentence for a serious offence, and he
had been in possession of contraband (marijuana) on two
occasions. The applicant did not request a re-examination of
the decision by the National Parole Board Appeal Committee.
Held, the application should be dismissed.
In Gammond v. National Parole Board a similar motion was
dismissed because it was doubtful that service had been proper
ly effected, particularly as the respondent had not filed a reply.
Here, the respondent has made a full reply. In obiter dictum in
Gammond it was stated that the application would also have
been dismissed because the importance of the issues raised was
such as to require an oral hearing. No doubt the liberty of the
individual is of "gravest import". However, the applicant delib
erately invoked Rule 324 in order to place his written com
plaints before the Court for adjudication. The respondent has
not applied for an oral hearing pursuant to Rule 324(3). Since
Rule 324 operates for the convenience of the bar, fairness
demands that it operate for the convenience of inmates too.
Very special circumstances would be required to deprive a
prisoner of the convenient access to the Court afforded by Rule
324. The Court cannot compel an individual to be represented
by counsel. To deny unrepresented prisoners the access afford
ed by Rule 324 could be to compel an inarticulate person to
make an inept oral submission if he is determined to place his
complaints before the Court. The Court therefore "considers it
expedient" that the motion "be disposed of without personal
attendance" of either "party or an attorney or solicitor on his
behalf".
In mandamus proceedings the Court cannot assess the evi
dence and the weight of evidence before the National Parole
Board. As an independent tribunal, the Board is not legally
obliged to conform its decisions to favourable recommenda
tions, but only to consider them. The decision did not involve an
unreasonable exercise of discretion. The Board having acted
within its jurisdiction, the mandamus application must be
rejected.
The issue remained as to whether the decision ought to be
quashed on certiorari. The statutory sources of the applicant's
alleged rights are the lawful sentence of imprisonment and the
Parole Act and Regulations. The sentence must be regarded as
apt since it is the minimum term prescribed by Parliament, and
it has not been modified on appeal. By means of the legislation,
Parliament has prescribed the conditions under which the
Board may grant conditional liberation. Since December 31,
1984, decisions which are not required by legislation to be
made by way of a hearing are made only after a review of the
inmate's file, which may include representations made by the
inmate. However, the Chairman or Vice-Chairman could per
sonally approve that a hearing be held even though the hearing
was not required by statute. The applicant did not request such
a hearing.
The only material which was considered on the applicant's
request for day parole were the applicant's own written request
and the two progress summaries, the contents of which were
known by the applicant. There was no accuser to be faced and
no other information outside the applicant's knowledge. This
case is not within the rule formulated by the Supreme Court of
Canada in Singh v. Minister of Employment and Immigration,
but rather within the exceptions. Furthermore, what is at stake
in an application for day parole is very different from that in
the determination of refugee status. As expressed in O'Brien v.
National Parole Board, "There was no question of the depriva
tion of any constitutionally enshrined right of liberty .... The
applicant made a request for the granting of a privilege...."
The deprivation by revocation of even a conditional liberty
which has already been accorded is different from, and more
serious than, the discretionary withholding of such a condition
al liberty in the first place. The kind of decison-making process
appropriate for the principles of fundamental justice, for the
inmate, and for society must be viewed through the statutory
scheme. Parliament has provided for the imposition of an apt
sentence and then accorded the Board discretion to permit
certain well-behaved inmates to avoid serving some part of their
term of incarceration. Parliament had ordained, by section 11
of the Parole Act that the inmate seeking day parole is not
entitled to an oral hearing of his request. In applications for
day parole, the convict places his progress and behaviour before
the Board in an attempt to persuade it to grant the request.
When all the materials in use are available to the applicant and
he asserts no wish to add to them, the principles of fundamental
justice do not demand that he be afforded an opportunity of
making oral submissions. The Court ought not impose extra
procedures which conflict with the scheme of the legislation.
The relief sought is discretionary. Ordinarily the Court will
not consider a favourable exercise of its discretion until an
applicant has exhausted all other avenues of redress. The
applicant did not request re-examination of the Board's deci
sion by the Appeal Committee. No extraordinary reasons for
by-passing that step have been placed before the Court.
Accordingly, the Court will not exercise its discretion in appli
cant's favour.
CASES JUDICIALLY CONSIDERED
APPLIED:
O'Brien v. National Parole Board, [1984] 2 F.C. 314
(T.D.).
DISTINGUISHED:
Gammond v. National Parole Board, order dated Decem-
ber 17, 1985, Federal Court, Trial Division, T-1580-85,
not yet reported; Singh et al. v. Minister of Employment
and Immigration, [1985] 1 S.C.R. 177; R. v. Cadeddu
(1982), 32 C.R. (3d) 355; 146 D.L.R. (3d) 629 (Ont.
S.C.); Re Lowe and The Queen (1983), 5 C.C.C. (3d)
535 (B.C.S.C.); Re Dumoulin and The Queen (1983), 6
C.C.C. (3d) 190 (Ont. H.C.); Re Swan and The Queen
(1983), 7 C.C.C. (3d) 130 (B.C.S.C.).
REFERRED TO:
Hay v. Nat. Parole Bd. (1985), 13 Admin. L.R. 17; 21
C.C.C. (3d) 408 (F.C.T.D.).
WRITTEN REPRESENTATIONS BY:
Christie Stuart MacDonald on his own
behalf.
Joan L. Brockman for respondent.
SOLICITOR:
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MULDOON J.: The applicant is seeking (i) a writ
of certiorari quashing a decision rendered by the
respondent denying him day parole, or (ii) alterna
tively, an order of mandamus to require the
respondent to render a decision granting him day
parole, or (iii) again alternatively, an order requir
ing an oral hearing of him in person, on the
question of his being granted day parole by the
Board.
The applicant moves for those remedies pursu
ant to section 18 of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10] and to Rule 324 [Federal
Court Rules, C.R.C., c. 663]. In the case of Gam-
mond v. National Parole Board, [Federal Court,
Trial Division] T-1580-85, [not yet reported] Mr.
Justice McNair dismissed just such a motion on
December 17, 1985. He did so because he had
"grave misgivings that service was not properly
effected" and noted that the respondent had "not
filed any representations in reply to the 324
motion nor has it given any indication of its inten
tion to do". Such is not the situation here, for the
(same) respondent by its solicitors and counsel has
made a very full response to the motion with
affidavits and written argument. The applicant has
been a trifle prolix, but basically he has confined
his written argument into a more-than-one-part
submission and a reply to the respondent's written
arguments. In this regard the present matter is
quite different from that of the Gammond case.
In that case, however, McNair J. did express an
obiter dictum on an identical aspect of the two
cases, when he wrote the following passage near
the end of his reasons [at page 5]:
There is, however, another ground on which I would have
dismissed the application. The applicant is a lay prisoner
advocating his own cause and he is to be commended for the
carefully documented and soundly researched case he put
forward on his own behalf. Nonetheless, his representations
raise issues of the gravest import which, in my opinion, ought
not to be disposed of without an oral hearing.
That the applicant's representations raise issues
of the gravest import is beyond doubt in that
matters of the liberty of the individual are the
subject of both statutory and constitutional enact
ments. In the Canadian Bill of Rights, R.S.C.
1970, Appendix III, paragraph 1(a) proclaims
I....
(a) the right of the individual to life, liberty, security of the
person ... and the right not to be deprived thereof except by
due process of law;
Similarly, the Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.) (hereinafter the Charter) provides:
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.
Now it is quite apparent that the applicant, an
inmate at William Head prison institution at
Metchosin, British Columbia, purposely invoked
Rule 324 and followed its procedures, in order to
place his written complaints before the Court for
adjudication. Equally, it is abundantly clear that
the respondent has reciprocally replied in writing,
and has not sought to invoke that portion of Rule
324(3) which permits it to apply for an "oral
hearing", in the words of the Rule. Since Rule 324
operates for the convenience of the bar (if not also
for the avoidance of expense for their client liti
gants), fairness demands that it operate for the
convenience of prison inmates, too. Surely very
special circumstances would be needed to deprive a
prisoner of the convenient access to the Court
which is afforded by Rule 324, within whose con
templation there is always a judge available, no
matter where the applicant may be imprisoned.
At some, perhaps considerable, expenditure of
time and money, either party may cross-examine
the other party's deponents on their affidavits filed
in the proceedings. In this instance no such cross-
examination has been sought.
There is yet another factor to consider. The
Court cannot compel an individual applicant to be
represented by counsel, advisable as that may be,
because every individual who complies with the
procedural rules has an undeniable right of access
to, and audience in, the Court, subject always to
normal requirements of decorum. Not everyone—
indeed, not every barrister—is effective in express
ing oral submissions to a tribunal. So, to deny
unrepresented prisoners the access afforded by
Rule 324, could well be to compel a perhaps
inarticulate, ill-educated person (unlike the
present applicant) to make a hopelessly inept and
ineffectual oral submission, if that person be deter
mined to place his complaints before the Court.
More appropriate is to permit a prisoner, at the
utterly inconsequential risk of displaying shaky
spelling and grammar, to reflect upon his or her
words in composing written submissions at a time
of his or her own choosing and perhaps with the
aid of someone more literate than the applicant.
Thus, with utmost respect for the learned Judge
who expressed his obiter dictum in the Gammond
case, the Court, in the present case "considers it
expedient" that this motion "be disposed of with
out personal attendance" of either "party or an
attorney or solicitor on his [or its] behalf."
In his written reply argument, said by the appli
cant to be his final submission, he raises a question
about the term, and therefore the validity, of the
respondent's chairman's appointment. That ques
tion is legally vapid, but more to the immediate
point it is a matter of neither reply nor rebuttal in
the course of the argumentation of the parties.
Accordingly that aspect of the applicant's written
argument is simply to be ignored in these proceed-
ings. The parties' submissions therefore are com
plete and closed.
In his affidavit filed December 23, 1985, the
applicant swore to the truth of these passages:
2. That I was sentenced to a term of seven years imprisonment
for importing a narcotic with a street value of $25,000 on May
30th, 1984 with a recommendation by the learned trial Judge
[as is clearly shown in Ex. H] that I serve my sentence at
William Head Prison which is a medium-minimum security
rated prison.
4. That on the 20th day of July, 1984, the National Parole
Board notified me by letter that I was eligible for Unescorted
Temporary Absences on 30 July, 1985; for Day Parole on 30
July 1985 and for Full Parole on 29 September, 1985. Exhibit
"B" to this my affidavit.
5. That I applied to the National Parole Board for Day Parole
on the 21st day of March, 1985 and my application was
acknowledged by a letter dated 10 April, 1985. This letter
informed me that the Board would make a decision without
conducting a personal interview. Exhibit "C" to this my
affidavit.
9. That I was denied a hearing for Day Parole by the National
Parole Board and instead, on October 18, 1985, the Board by
means of a "Paper Panel Info Shared Assistant" denied me
Day Parole. Exhibit "G" to this my affidavit.
11. That the National Parole Board completely ignored all
representations made on my behalf and all of the positive things
I have accomplished since my arrest, conviction and subsequent
imprisonment.
12. That I have been on Escorted Temporary Absences since
June 1985 and have completed each and every absence success
fully. I have received eight hours per month E.T.A. to visit with
my family who are completely supportive of me.
13. That I was on Bail from September, 1982 until May, 1984
while awaiting trial. I abided by all of the conditions of my
release.
14. That I was only 20 years of age at the time I was charged
with my criminal offence.
15. That I am a first offender and had never been in conflict
with the law up to the time of the offence for which I was
convicted.
16. That I have attended university while in prison and have
earned 78 credits towards my degree in communications.
Exhibit "I" to this my affidavit.
17. That I have maintained an -A average in my university
courses at William Head and will continue until graduation at
Simon Fraser University. Exhibit "J" to this my affidavit.
18. That my Case Management Team which consists of Living
Unit Officer [named], my Living Unit Development Officer,
[named] and my Parole Officer, [named], who have known me
since my incarceration at William Head, all fully supported me
for Day Parole. None of my team were present when the Parole
Board were making their decision and none of my Team were
able to present their arguments on my behalf orally.
19. I have never seen or talked to any member of the National
Parole Board.
20. I belong to the Laren Society and I have been accepted to
reside at the Bill Mudge Residence—their halfway House—if I
were to receive a Day Parole.
21. I attend the weekly meetings of the John Howard Society
held at William Head and I have been accepted by the John
Howard Society to reside at their halfway house—Manchester
House—if I were to receive a Day Parole.
22. That on page 11 and 12 of "A Guide to Conditional
Release for Penitentiary Inmates" issued by the National
Parole Board to prisoners, it states the "Factors Considered." If
the Board considered these factors, I would have received a
Day Parole. Exhibit "K" to this my affidavit.
23. That I verily believe that the National Parole Board by
denying me an in-person hearing, failed to act in a fair manner
and I was denied fundamental justice.
24. That I verily believe that if I were given the opportunity
and my Case Management Team were given the opportunity to
present my case for Day Parole at an in-person hearing, I
would be granted Day Parole.
What the applicant does not mention in his
affidavit is one of the factors mentioned in Ex. K,
"institutional behaviour-offences". In the appli
cant's case that is a factual factor. For the
respondent there was filed the affidavit of Nan
Georgina Harrison, a member of the respondent
Board who reviewed the applicant's application for
day parole dated March 21, 1985. She and two
other members of the Board reviewed that applica
tion in September 1985. The reasons given to the
applicant (named: Christopher MacDonald) for
not granting him day parole, according to this
affiant, were communicated to him in a notifica
tion dated September 17, 1985, a copy of which is
Ex. C to her affidavit:
You are serving a relatively long sentence for a serious offence
you have been involved in contraband within the institution and
a further offence-free period is necessary to prove credibility.
The Board does not believe that you have gained the maximum
benefit from incarceration, nor has the deterrent aspect of your
sentence been achieved.
It is noteworthy, as will become evident later in
these reasons, that the two forms of Notification of
National Parole Board Decision appended as
Exhibits C and G to Ms. Harrison's affidavit
(dated respectively September 20 and October 24
in 1985) both bear the following message:
You may request that this decision be re-examined by the
National Parole Board Appeal Committee in Ottawa. Your
completed "Request for Re-examination of Decision" form
should be received by the Case Analysis and Review Section,
National Parole Board, 340 Laurier Avenue West, Ottawa
Ontario, K1A 0R1 within thirty (30) days of the date of this
notification. This form (NP B32) is available at the institution.
That message neither offers nor forecloses an in-
person review but, since the re-examination would
be performed by the committee in Ottawa, it tends
to imply that the re-examination could not involve
the applicant's personal participation or attend
ance before the committee.
Ms. Harrison further deposed:
6. That in reaching this decision, I considered the Case Man
agement Team's recommendation that day parole be granted.
A copy of the Case Management Team's Progress Summary
and Recommendations dated August 22, 1985 is attached to
my affidavit and marked as Exhibit "D".
This document, a very favourable report, signed by
a section supervisor and by a parole officer of the
Victoria Parole Office, notes 3 institutional
offence convictions described therein as "posses-
sion of contraband (marijuana) on two occasions
and failing to obey an order." Nevertheless, the
case management team, (with whom the applicant
"was actively involved" according to paragraph 7
of the filed affidavit of Fraser Simmons, Regional
Manager, Case Preparation for the respondent)
articulately and strongly recommended that the
applicant be accorded day parole.
The case management team again recommended
the applicant for day parole, in October 1985, and
in the event of denial by the respondent, the team
recommended unescorted temporary absences of
48 hours per month to his parents' home. A copy
of their progress summary and recommendations
are Ex. E to Ms. Harrison's affidavit. She, with
another member of the earlier panel, and a differ
ent third member reviewed this October applica
tion. The request for unescorted temporary
absences was granted, while that for day parole
was again denied.
Ms. Harrison's affidavit continues, in regard to
the request for day parole.
11. That the reasons given to the applicant for not granting him
day parole were communicated to him in the form of a Notifi
cation dated October 22, 1985, a copy of which is attached to
my affidavit and marked as Exhibit "G".
12. That the above decision dated October 22, 1985 is the same
decision as the one attached to the applicant's affidavit marked
as Exhibit "G".
13. That the reason the applicant was denied day parole was
that there was still a concern regarding the applicant's involve
ment with drugs in the institution and that he might re-offend.
14. That I considered the recommendations presented by the
Case Management Team dated October 3, 1985, as set out in
Exhibit "E", but that I was still concerned about the appli
cant's risk to re-offend.
15. That with regard to paragraph 5 of the Applicant's affida
vit, the Board did not receive a request for an oral hearing from
the applicant following the Board's letter of April 10, 1985,
stating that the Parole Board would make a decision without
conducting a personal interview.
16. That with regard to paragraph 10 of the affidavit, I took
into consideration the trial judge's decision at the sentencing
hearing. However, it was obvious to me, given the applicant's
involvement with drugs in the institution, that the rehabilitation
of the applicant had not been achieved.
17. That with regard to paragraphs 11 through 18 and 20
through 22, I took into account all the factors listed by the
applicant, but it was still my opinion that day parole should not
have been granted in either September or October of 1985 for
reasons set out earlier in paragraphs 7 and 13 of this my
affidavit.
Now, the foregoing evidence is conclusive as to
the legal propriety of the decisions rendered by the
respondent in rejecting the application for day
parole. It is apparent that the applicant was disap
pointed, and indeed probably incredulous, over
that decision, in light of the highly favourable
recommendations which supported his case. How
ever, this present proceeding for mandamus is not
an appeal on the record in which the Court can
assess the evidence and the weight of evidence
before the National Parole Board.
As an independent tribunal, the Board is not
legally obliged to conform its decisions to favour
able recommendations, but rather, only to consider
them. It may properly find greater weight in other
considerations properly before it, such as the appli
cant's institutional behaviour. This Court is not
entitled to usurp the Board's function. Even if the
Court would have come to the opposite conclusion,
if it were charged with the same responsibilities as
is the Board, so long as the Board acts within its
jurisdiction, the Court will not command the
Board to render a different decision. There is no
basis here for finding that the decision involved an
unreasonable exercise of discretion. That being so,
the respondent's decision is also not to be quashed
in this sense, either.
Accordingly, the applicant's motion for man-
damus in regard to the substance of the decision,
with certiorari in aid, as it were, is dismissed.
There remains the issue as to whether the
respondent's decision to deny day parole ought to
be quashed on certiorari in order that the appli
cant may be heard in person upon his request for
day parole before the Board prior to its rendering
of the decision on that request. Does "due process"
or "the right to a fair hearing in accordance with
the principles of fundamental justice" exacted by
the Bill of Rights, or "the principles of fundamen
tal justice" proclaimed by the Charter, demand a
so-called oral hearing by the respondent on this
request for day parole? Questions of a highly
similar nature were considered by the Supreme
Court of Canada in Singh et al. v. Minister of
Employment and Immigration, [1985] 1 S.C.R.
177. There the subject-matter was different, being
the appellants' alleged rights to a hearing in the
determination of their asserted refugee status pur
suant to the Immigration Act, 1976 [S.C. 1976-77,
c. 52]. Although the Supreme Court came to a
unanimous judgment in favour of the appellants, it
divided equally in emphasizing the Charter on the
one hand and the Bill of Rights on the other.
The Supreme Court's two approaches to the
matter are instructive for, despite the divergence
of basic emphasis in resolving the issues, both
groups of judges began by identifying the statutory
source of alleged rights. Madam Justice Wilson,
writing also for Chief Justice Dickson and Mr.
Justice Lamer, is reported at page 188 as noting
that: "If, as a matter of statutory interpretation,
the procedural fairness sought by the appellants is
not excluded by the scheme of the Act, there is, of
course, no basis for resort to the Charter." Mr.
Justice Beetz, writing also for Messrs. Justices
Estey and McIntyre, is reported at page 228 as
noting that: "Accordingly, the process of determin
ing and redetermining appellants' refugee claims
involves the determination of rights and obliga
tions for which the appellants have, under s. 2(e)
of the Canadian Bill of Rights, the right to a fair
hearing in accordance with the principles of funda
mental justice."
In the present case, the rights and obligations of
the applicant are to be identified and determined
on two bases. The first is the lawful sentence of
imprisonment which was imposed upon him. It
must be regarded as an apt sentence, since its term
of seven years is the minimum term prescribed by
Parliament for his offence, and it has not been
modified on any appeal. The applicant's status of
prison inmate does not, of course, dilute his right
to life and security of the person, but it severely
limits his right to liberty. His obligation is to keep
the peace by submitting to his carceral bounds and
to be of that special form of good behaviour
exacted by the discipline of all lawful prison regu
lations and orders. The second basis of identifying
and determining the applicant's rights and obliga
tions is the Parole Act [R.S.C. 1970, c. P-2] and
Regulations. By means of this legislation Parlia
ment itself has prescribed the conditions under
which the respondent is empowered to grant condi
tional liberation from prison during the very term
of imprisonment imposed under the sentence pro
nounced by a court of competent jurisdiction.
Two provisions of the Act [as am. by S.C.
1976-77, c. 53, ss. 23 and 26] may be noted:
6. Subject to this Act, the Penitentiary Act and the Prisons
and Reformatories Act, the Board has exclusive jurisdiction
and absolute discretion to grant or refuse to grant parole ...
and to revoke parole or terminate day parole.
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.
The manner in which the respondent Board
dealt with applications at the material times is
explained in the filed affidavit of Roger Labelle,
Vice-Chairman of the Board since April 1980. He
swore, in part, thus:
2. Prior to the latter part of 1984, when Mr. Justice MacNair
[sic] of this Honourable Court delivered his judgments in the
cases of O'Brien (1984) 17 C.C.C. (3d) 163 (Court No.
T-900-84 and Ford (1984) 43 C.R. (3d) 26 (Court No.
T-901-84), the policy of the Board with respect to the types of
decisions that were required to be made by way of in-person
hearings was as set out in paragraph 6 and Exhibit "D" of the
Applicant's affidavit. The first (and only the first) review for
day parole was then held by way of a hearing.
4. After the judgments in O'Brien and Ford, the Board had to
change the policy referred to earlier in paragraph 2 of this
affidavit. Since December 31, 1984 all decisions which are not
required by statute or regulation to be made by way of a
hearing are generally made only after a review of the inmate's
file, which may include representations made by the inmate or
an assistant if the inmate chooses to do so. Attached hereto as
Exhibit "A" of this my affidavit is a copy of Circular No.
1984-31, entitled "Conduct of Hearings", which sets out the
policy applicable at the time the Board rendered its decision
with respect to the applicant's request for day parole ....
5. Circular 1984-31 provided for three exceptions to the policy.
The first was that all decisions which resulted in the loss of
liberty already granted were and still are required to be made
after a hearing (see paragraph 7 of the Charter). This excep
tion dis [sic] not apply in the Applicant's case.
6. The second exception was set out at paragraph 6 of the
Circular which provided that in exceptional circumstances, the
Chairman or the Vice-Chairman could personally approve that
a hearing be held even though the hearing was not required by
statute....
7. I and, according to the information I am given, the Chair
man of the Board were never asked to exercise our discretion to
grant a hearing in the applicant's case. I am advised that the
applicant has not asked to be provided such a hearing except in
the course of the present application before this Honourable
Court.
8. The third exception to Circular 1984-31 was described at
paragraph 9 of the Circular. This paragraph, which is still in
force, provides that the Appeal Committee, when re-examining
a decision pursuant to section 22 of the Parole Regulations or
Board policy, may decide to grant a hearing even when the
hearing is not required by statute or regulation to be held.
Attached hereto as Exhibit "B" to this my affidavit is the
Board policy on the appeal or re-examination of decisions
which was applicable when the Board rendered its decision
denying the Applicant day parole. Pursuant to that policy, the
decision made against the Applicant was subject to internal
appeal. The Applicant did not ask that the Board's decision be
re-examined but had he applied to the Appeal Committee, the
Committee would have examined his request on the basis of the
criteria set out in the paragraph 6 of the present affidavit.
Does all of this signify that the adjudication
performed on the applicant's request for day
parole, without an oral hearing, violated the prin
ciples of fundamental justice? Here again the rea
sons expressed by the Supreme Court in the Singh
case are instructive. At page 213 of the Supreme
Court Reports, Madam Justice Wilson is reported
to have posed this question, always in regard of
course to the claim for refugee status under the
Immigration Act, 1976. She wrote that she was
prepared to accept the:
... submission that procedural fairness may demand different
things in different contexts: see Martineau, supra, at p. 630.
Thus it is possible that an oral hearing before the decision-mak
er is not required in every case on which s. 7 of the Charter is
called into play. However, I must confess to some difficulty in
reconciling [Crown counsel's] argument that an oral hearing is
not required in the context of this case with the interpretation
he seeks to put on s. 7. If "the right to life, liberty and security
of the person" is properly construed as relating only to matters
such as death, physical liberty and physical punishment, it
would seem on the surface at least that these are matters of
such fundamental importance that procedural fairness would
invariably require an oral hearing. I am prepared, nevertheless,
to accept for present purposes that written submissions may be
an adequate substitute for an oral hearing in appropriate
circumstances.
The particular provisions of the statutory scheme
in that immigration case were what persuaded
Wilson J. that the circumstances were inappropri
ate for a denial of an oral hearing, as revealed on
page 215 of the reported judgment:
What the [Immigration Appeal] Board has before it is a
determination by the Minister based in part on information and
policies to which the applicant has no means of access that the
applicant for redetermination is not a Convention- refugee. The
applicant is entitled to submit whatever relevant material he
wishes to the Board but he still faces the hurdle of having to
establish to 'he Board that on the balance of probabilities the
Minister was wrong. Moreover, he must do this without any
knowledge of the Minister's case beyond the rudimentary rea
sons which the Minister has decided to give him in rejecting his
claim. It is this aspect of the procedures set out in the Act
which I find impossible to reconcile with the requirements of
"fundamental justice" as set out in s. 7 of the Charter.
It will be necessary to determine if the same factor
presents itself upon a request to the National
Parole Board to grant day parole.
Mr. Justice Beetz who wrote for those judges
who based their decision in the Singh case on the
provisions of the Bill of Rights, is reported as
noting at pages 229 and 230:
I do not wish to suggest that the principles of fundamental
justice will impose an oral hearing in all cases. In Attorney
General of Canada v. Inuit Tapirisat of Canada, [1980] 2
S.C.R. 735, at p. 747, Estey J. speaking for the Court quoted
Tucker L.J. in Russell v. Duke of Norfolk, [1949] 1 All E.R.
109 (C.A.), at p. 118:
The requirements of natural justice must depend on the
circumstances of the case, the nature of the inquiry, the rules
under which the tribunal is acting, the subject-matter that is
being dealt with, and so forth.
The most important factors in determining the procedural
content of fundamental justice in a given case are the nature of
the legal rights at issue and the severity of the consequences to
the individuals concerned. In the same Inuit Tapirisat case, at
the same page, Estey J. also quoted Lord Denning, M.R., in
Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12
(C.A.), at p. 19:
... that which fairness requires depends on the nature of the
investigation and the consequences which it may have on
persons affected by it. The fundamental rule is that, if a
person may be subjected to pains or penalties, or be exposed
to prosecution or proceedings or deprived of remedies or
redress, or in some such way adversely affected by the
investigation and report, then he should be told the case
made against him and be afforded a fair opportunity of
answering it.
According to the affidavits of Ms. Harrison, the
Board member, and of Mr. Simmons the Board
official, the only material which was considered on
the applicant's request for day parole were the
applicant's own written request and the two
reports of progress summary with those favourable
recommendations submitted by the case manage
ment team, in the preparation of which the appli
cant was fully informed of content and is said to
have actually participated.
Here again there was no accuser (known or
unknown) in any sense of the word to be faced by
the applicant. If there were, he would, of course,
have the right to face, and question, his accuser(s).
Here there were no accuser(s) and no material or
other information kept from the applicant's ken.
There was no information on file which could be
considered confidential. Here, then, there can be
no valid complaint to the effect that the Board
might have been influenced by some unfavourable
allegations of which the applicant knew nothing.
He was fully apprised. This case, then, fits not
within the rule formulated in the Singh case, but
rather within the exceptions expressed by both
factions of the Supreme Court.
Furthermore, what is at stake in an application
for day parole is very different in nature and
degree from what is at stake in the determination
of refugee status. With respect, there is merit in
the notion expressed by Mr. Justice McNair in
O'Brien v. National Parole Board, [1984] 2 F.C.
314 (T.D.), at page 326:
The subject-matter of the application was simply a request.
There was no question of the deprivation of any constitutionally
enshrined right of liberty, conditional or otherwise, such as
might occur with the revocation of parole and its consequences
on earned remission or the suspension of mandatory supervi
sion. The applicant made a request for the granting of a
privilege which was denied in accordance with the clearly
mandated legislative provisions. To my mind, a distinction must
be drawn between a denial affecting the expectation of enjoy
ment of some anticipated privilege of liberty and the depriva
tion of some right of liberty, presently existing and enjoyed,
where such deprivation is contrary to fundamental justice.
Conceptually and actually the deprivation by
revocation of even a conditional liberty which has
already been accorded is different from, and more
serious than, the discretionary withholding of such
a conditional liberty in the first place. Such was
the thrust of the judgment of this Court in Hay v.
Nat. Parole Bd. (1985), 13 Admin. L.R. 17; 21
C.C.C. (3d) 408 (F.C.T.D.). The cases of R. v.
Cadeddu (1982), 32 C.R. (3d) 355; 146 D.L.R.
(3d) 629 (Ont. S.C.); Re Lowe and The Queen
(1983), 5 C.C.C. (3d) 535 (B.C.S.C.); Re
Dumoulin and The Queen (1983), 6 C.C.C. (3d)
190 (Ont. H.C.); and Re Swan and The Queen
(1983), 7 C.C.C. (3d) 130 (B.C.S.C.), are all cases
concerned with revocation of parole.
As with revocation, the appropriateness of an
oral hearing for deciding on full parole is not in
question here. Day parole is of a more limited
probationary nature; and the kind of decision-mak
ing process appropriate for the principles of funda
mental justice, for the inmate, and for society in
which the inmate seeks to be conditionally liberat
ed, must be viewed through the optic of the statu
tory scheme. Parliament wills that the offender be
subjected to the denunciation and punishment of
an apt, lawful sentence. But Parliament relents in
according the Board discretion to permit certain
well-behaved inmates to avoid the punishment of
incarceration, by serving some part of the apt term
to which they were lawfully sentenced outside of
the prison. Parliament has ordained, by section 11
of the Parole Act, that the inmate seeking day
parole is not entitled to be personally interviewed,
that is, to have an oral hearing of his request.
In cases of such requests the inmate is the actor
who, in effect, places his own progress and behavi
our before the Parole Board in order to persuade it
to grant the request. Naturally, the Board must
and may examine that progress, if any, and that
behaviour so that it may properly exercise its
discretion. This may be contrasted with revocation
proceedings in which the Board is the actor in
calling upon the parolee, in effect, to explain his
reported misbehaviour, failing justification for
which he may be returned to prison. However, in
neither case may the Board act upon reports (with
certain exceptions) known only to it and not to the
prisoner or parolee as the case may be. When, as
here, all the materials in use are available and
known to the applicant and he asserts no wish to
add to them or to make any written explanations
beyond what he has submitted, the principles of
fundamental justice do not demand that he must
also have the occasion to make oral submissions to
elaborate further the written submissions filed in a
process which he has himself initiated. But for
parole (and mandatory supervision) each inmate
would be properly obliged to serve the appropriate
term of imprisonment imposed by lawful sentence
of the Court. It is the applicant who seeks, by
discretionary exception, to be relieved of that
proper obligation. It is not the Board which is
seeking to abort or take away any qualified liberty
already accorded to the applicant. The applicant's
progress in prison, the behaviour or misbehaviour,
and the initiation of the application for day parole
are all in the applicant's hands. The applicant
needs no right of oral presentation or of reply in
person since it is his application alone, including
the favourable case management reports in this
case, which are before the Board. Content with
that documentation, the applicant made no further
submissions. In these circumstances the lack of an
oral hearing is quite unexceptionable. It certainly
does not transgress on the principles of fundamen
tal justice.
This Court ought not unnecessarily to tack on to
those principles any extra procedures which con
flict with the scheme of the legislation. So, the
applicant's motion for an order to compel the
Board to arrange for him an oral hearing, or
in-person hearing, fails.
This finding that the respondent Board's deci-
sion-making process in regard to the applicant's
request for day parole meets the tests of the Bill of
Rights and the Charter, still leaves one further
consideration at large. The relief which the appli
cant seeks here is discretionary on the part of the
Court. Ordinarily the Court will not even consider
a favourable exercise of discretion unless and until
the applicant has exhausted all avenues of redress
and appeal before invoking the Court's powers.
According to Mr. Labelle the respondent's Vice-
Chairman, and Mr. Simmons who, and whose
staff, have custody and control of the applicant's
file among others, the applicant never made any
"Request for Re-examination of Decision" to the
Appeal Committee of the Board after his applica
tion for day parole had been denied. No extraordi
nary reasons for by-passing a request for re-exami
nation of that decision have been placed herein
before the Court. Accordingly, the Court ought
not to, and will not, exercise its discretion in
favour of the applicant's motion for an order to
compel the respondent to provide a new, and in-
person hearing for his application.
These reasons address past events. Although the
Court's conclusion regarding the matters in dis
pute indicates that the respondent is under no
constitutional or other legal duty to provide an
in-person or oral hearing of the applicant's request
for day parole, nothing herein should be construed
to inhibit the respondent from granting day parole
to the applicant if, in the respondent's lawfully
exercised discretion, he now or later merits such
consideration. Obviously, his institution of the pro
ceedings herein should not count against him in
that regard. That noted, the applicant's motion for
certiorari, mandamus or, in the alternative an
order requiring a new hearing, is dismissed with
costs.
ORDER
IT IS ORDERED that the applicant's motion herein
be, and it is hereby, dismissed with costs.
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