T-170-84
Donald Cadieux (Applicant)
v.
Director of Mountain Institution and National
Parole Board (Respondents)
Trial Division, Reed J.—Vancouver, March 12;
Ottawa, May 8, 1984.
Constitutional law — Charter of Rights — Fundamental
justice — Applicant's Unescorted Temporary Absence pro
gram (U.T.A.) revoked — National Parole Board refusing to
disclose reasons — Decision subject to requirements of funda
mental justice prescribed by s. 7 of Charter — Inmate entitled
to know gist of case against him, but not necessarily entitled to
identity of information source, production of documents or
details of case — Public interests in preventing repeat offences,
in maintaining security and order in institution and in preserv
ing Board's ability to function effectively may outweigh
normal rule — Circumstances justifying derogation to include
element of necessity — Scope of constitutional guarantee not
limited by fact information given in confidence — Refusal to
disclose gist of case, based on class exemption, contrary to s. 7
— Necessity of nexus between content of information and
protection of public interest sought to justify non-disclosure
on basis of class exemption — Certiorari granted — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. II
(U.K.), ss. 7, 9.
Constitutional law — Charter of Rights — Right to life,
liberty and security — Revocation of Unescorted Temporary
Absence program (U.T.A.) — Refusal of National Parole
Board to disclose reasons — "Liberty" under U.T.A. more
limited than liberty under full or day parole but similar to
latter — Numerous judgments holding decisions on parole
revocation subject to s. 7 Charter protection — Whether or not
U.T.A. privilege not limiting guarantees of fundamental jus
tice — Distinction between "rights" and "privileges" not
determinative of issue whether to allow judicial review —
Word "right" in s. 7 used in generic rather than narrow sense
— "Right" encompassing "privileges" and "powers" — Cer-
tiorari application allowed — 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.
Constitutional law - Charter of Rights - Limitation
provision - Revocation by National Parole Board of Unes-
corted Temporary Absence program (U.T.A.) - No reasons
disclosed - Procedure re U.T.A. set out in Manual of Policy
and Procedures issued pursuant to s. 25 of Parole Regulations
- Under s. 7 of Manual, inmate to be informed in writing of
reasons for cancellation of U.T.A. unless exemption claimed
under Canadian Human Rights Act - S. 7 exemption too
broadly framed to constitute reasonable limit pursuant to s. I
of Charter - Manual not "prescribed by law" within meaning
of s. I of Charter - Application for certiorari allowed -
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. l - Canadian Human Rights Act, S.C. 1976-77,
c. 33, s. 54 - Privacy Act, S.C. 1980-8/-82-83, c. 11l,
Schedule II.
Parole - National Parole Board revoking applicant's Unes-
corted Temporary Absence program (U.T.A.) - Board refus
ing to disclose reasons - Decision respecting U.T.A. review-
able by certiorari and subject to requirements of fundamental
justice prescribed by s. 7 of Charter - Inmate entitled to
know gist of case against him - Circumstances where deroga
tion justified on grounds of public interest must be rare
Refusal to disclose gist of case, based on class exemption,
contrary to Charter s. 7 - Necessity of nexus between content
of information and protection of public interest to justify
non-disclosure on basis of class exemption - In claiming
non-disclosure, Board to follow procedure similar to that
under s. 36.1 of Canada Evidence Act - Certiorari granted
Parole Act, R.S.C. 1970, c. P-2, ss. 3(6) (as am. by S.C.
1976-77, c. 53, s. 18), 6 (as am. idem, s. 23), 9 - Parole
Regulations, SOR/78-428, ss. 2, 12(1), 17(3), 24, 25 - Peni
tentiary Act, R.S.C. 1970, c. P-6, s. 26.1 (as enacted by S.C.
1976-77, c. 53, s. 42) - Canada Evidence Act, R.S.C. 1970, c.
E-10, s. 36.1 (as enacted by S.C. 1980-81-82-83, c. 11/, s. 4)
- 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 - Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, ss. 18, 41(1) (repealed by S.C. 1980-81-82-83, c.
11 1, s. 3).
This is an application for a writ of certiorari to quash a
decision of the National Parole Board cancelling the applicant's
Unescorted Temporary Absence program (U.T.A.) from
Mountain Institution. The applicant's first U.T.A. was can
celled following violation of one of the terms of release. The
applicant sought, and was granted, a new U.T.A. program, the
purpose of which was to allow him to attend an alcohol and
drug treatment centre. The Board subsequently informed the
applicant that it was in receipt of confidential information
which satisfied it that there was a risk that applicant would
violate once again the terms of his release. The applicant's
U.T.A. program was thereupon cancelled. No information as to
the nature of the confidential information was divulged.
The applicant argues that the failure to disclose the reasons
for cancellation of his U.T.A. and the failure to give him the
opportunity to respond contravene section 7 of the Charter. The
issues are: (1) whether the rules of fundamental justice apply to
the decision-making process respecting U.T.A.s; (2) if the
answer to (1) is in the affirmative, whether those rules have
been infringed; (3) whether the refusal to grant access to the
confidential information was made pursuant to the limitation
provision in section 1 of the Charter.
Held, the decision should be quashed and the matter referred
back to the Board for reconsideration as to whether the appli
cant can be informed of the gist of the case against him.
There is abundant authority to the effect that decisions
respecting revocation of parole are reviewable by certiorari.
There is also a plethora of trial decisions holding that revoca
tion of parole attracts the protection of section 7 of the Charter.
The "liberty" under a U.T.A. program, although of a more
limited nature than in the case of full parole or day parole, is
nevertheless similar in character to the latter. Thus, decisions
respecting U.T.A.s also fall within the scope of the rules
respecting certiorari as well as being subject to the require
ments of fundamental justice prescribed by section 7 of the
Charter.
The fact that the applicant's U.T.A. program has not been
implemented or that the granting of such a program might be
labelled a privilege does not limit the guarantees of fundamen
tal justice. The Supreme Court of Canada in Martineau v.
Matsqui Institution Disciplinary Board clearly indicated that
the distinction between "rights" and "privileges" should not be
determinative of the issue whether judicial review should be
allowed. The word "right" in section 7 of the Charter is used in
a generic rather than narrow sense; it encompasses concepts
such as "privileges" and "powers".
The rules of fairness do not always require the disclosure of
all the information the decision-making body has before it. The
question whether section 7 of the Charter requires a higher
standard than do the rules of fairness need not be answered,
since under either test there are circumstances where an inmate
may be denied knowledge of the reasons underlying the revoca
tion of his U.T.A. program.
The Federal Court of Appeal in Lazarov v. Secretary of
State of Canada found that the audi alteram partem rule
applied generally to a discretionary decision of the Minister in
refusing to grant citizenship when there were no rules of
procedure prescribed by statute. This principle equally applies
to decisions of the Board respecting U.T.A.s. In general, an
inmate is entitled to know the substance of the reasons for
revocation of his U.T.A. program. This does not mean, how
ever, that he is entitled to know the identity of the source of
information or to the production of the documents themselves
or to be given all the details of the case against him.
To allow non-disclosure to be justified merely on the ground
that the information was given in confidence, is far too weak a
justification for a limitation on the scope of a constitutional
guarantee. This is particularly so when a person's liberty is at
stake (even though that liberty be of a limited and conditional
nature).
The public interests in preventing repeat offences while an
inmate is at large, in maintaining security and order in the
penal institution, and in preserving the National Parole Board's
ability to function effectively may outweigh the normal rule
that a person is entitled to know the gist of the case against
him. But the occasions on which this is justified must be rare.
There must be an element of necessity; mere convenience for
the functioning of the Board is not enough.
The question as to whether a class exemption can be claimed
in a case such as the present one is answered in the negative.
The public interests mentioned above may all be adequate
reasons to justify a refusal, on a class basis, to produce the
confidential reports to the inmate, but they do not justify a
refusal to disclose the gist of the case against him. Such
non-disclosure would contravene the requirements of section 7
of the Charter. While there may be occasions where non-disclo
sure is justified, reasons therefore must relate to the specific
content of the information in question. There must be a nexus
between the content of the information and the protection of
the public interest said to be served by the non-disclosure.
The overall tone and content of the affidavits filed by
officials of the National Parole Board is one of claiming
blanket class exemption. If sufficient reasons exist for refusing
disclosure of even the gist of the case against the applicant
herein, then new affidavits containing a greater degree of
specificity ought to be filed. Should the Board claim non-disclo
sure on some second application, then it should be prepared to
produce for the Court the documents in question, pursuant to a
procedure similar to that developed at common law in privilege
cases and to that existing under section 36.1 of the Canada
Evidence Act, i.e. in a sealed envelope with a specific explana
tion as to the reasons justifying the non-disclosure. Although
section 36.1 of the Canada Evidence Act does not seem to apply
directly to the instant application (this application being one
for certiorari and not one to compel the production of informa
tion), nevertheless section 36.1, and its predecessor, subsection
41(1) of the Federal Court Act, are in many ways merely
codifications of the common law with some modifications there
of. Thus, even if section 36.1 does not expressly apply to the
present case, the common law renders applicable a procedure
which allows for review of the Board's decision.
The respondents argue that the breach, if any, of the require
ments of "fundamental justice" had occurred pursuant to a
"reasonable limit prescribed by law as can be demonstrably
justified in a free and democratic society" as provided for by
section 1 of the Charter. The procedure for the granting or
revoking of U.T.A.s is set out in the Manual of Policy and
Procedures issued by the Board pursuant to section 25 of the
Parole Regulations. Under section 7 of the Manual, an inmate
is to be informed in writing of the reasons for the cancellation
of his U.T.A. unless exemption from disclosure is claimed
pursuant to the Canadian Human Rights Act. The Court is not
convinced that such a procedure manual can be said to be
"prescribed by law" as those terms are used in section 1 of the
Charter. Had the Manual been approved by the Governor in
Council as required by subsection 3(6) of the Parole Act, the
conclusion would have been different. In any event, the exemp
tion contained in the Manual is too broadly framed to consti
tute a reasonable limit pursuant to section 1 of the Charter.
CASES JUDICIALLY CONSIDERED
APPLIED:
The Queen v. Snider, [1954] S.C.R. 479; Smerchanski v.
Lewis (1981), 120 D.L.R. (3d) 745 (Ont. C.A.); Re Swan
and The Queen (1983), 7 C.C.C. (3d) 130 (B.C.S.C.);
Mitchell v. The Queen, [1976] 2 S.C.R. 570; Latham v.
Solicitor General of Canada, [1984] 2 F.C. 734; 39 C.R.
(3d) 78; 12 C.C.C. (3d) 9 (T.D.); Lazarov v. Secretary of
State of Canada, [1973] F.C. 927 (C.A.).
CONSIDERED:
Rogers v. Secretary of State for the Home Department,
[1972] 2 All ER 1057 (H.L.); D. v. National Society for
the Prevention of Cruelty to Children, [1978] A.C. 171
(H.L.); Collymore v. Attorney-General, [1970] A.C. 538
(P.C.); Minister of National Revenue v. Huron Steel
Fabricators (London) Ltd., [1973] F.C. 808 (C.A.);
Science Research Council v Nassé, [ 1979] 3 All ER 673
(H.L.).
REFERRED TO:
Couperthwaite v. National Parole Board, [1983] 1 F.C.
274; 70 C.C.C. (2d) 172 (T.D.); Howarth v. National
Parole Board, [1976] 1 S.C.R. 453; Dubeau v. National
Parole Board, [1981] 2 F.C. 37; [1980] 6 W.W.R. 271
(T.D.); Morgan v. National Parole Board, [1982] 2 F.C.
648; 65 C.C.C. (2d) 216 (C.A.); Re Cadeddu and The
' Queen (1982), 4 C.C.C. (3d) 97 (Ont. H.C.); R. v. Lowe
(1983), 3 C.R.D. 900.150-03; 9 W.C.B. 349 (B.C.S.C.);
R. v. Nunery (1983), 5 C.R.R. 69; 2 C.R.D. 900.150-02
(Ont. H.C.); R. v. Martens (1983), 3 C.R.D. 900.150-02
(B.C.S.C.); R. v. Mason (1983), 3 C.R.D. 900.150-04
(Ont. H.C.); Martineau v. Matsqui Institution Discipli
nary Board, [1980] 1 S.C.R. 602; Rex v. Canterbury
(Archbishop). Ex parte Morant, [1944] 1 K.B. 282
(C.A.); Reg. v. Gaming Board for Great Britain, Ex
parte Benaim and Khaida, [1970] 2 Q.B. 417; [1970] 2
W.L.R. 1009 (C.A.); Reg. v. Secretary of State for
Home Affairs, Ex parte Hosenball, [1977] 1 W.L.R. 766
(C.A.); R. v. Teachers Tribunal: Ex parte Colvin, [ 1974]
V.R. 905 (S.C.); Re Howard and Presiding Officer of
Inmate Disciplinary Court of Stony Mountain Institution
(1983), 8 C.C.C. (3d) 557 (F.C.T.D.); Bisaillon v.
Keable, [1983] 2 S.C.R. 60; 2 D.L.R. (4th) 193; Marks
v. Beyfus (1890), 25 Q.B.D. 494 (C.A.); Solicitor Gener
al of Canada et al. v. Royal Commission of Inquiry
(Health Records in Ontario) et al., [1981] 2 S.C.R. 494;
Ellis v. Home Office, [1953] 2 Q.B. 135 (C.A.); Gagnon
v. Commission des Valeurs Mobilières du Québec et al.,
[1965] S.C.R. 73; Blais v. Honourable Robert Andras,
[1972] F.C. 958 (C.A.); Churchill Falls (Labrador)
Corp. Ltd. v. The Queen (1972), 28 D.L.R. (3d) 493
(F.C.T.D.).
COUNSEL:
Sasha Pawliuk for applicant.
G. O. Eggertson for respondents.
SOLICITORS:
Prison Legal Services Society of British
Columbia, Abbotsford, British Columbia, for
applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
REED J.: This is an application for a writ of
certiorari to quash a decision of the National
Parole Board cancelling the applicant's Unescort-
ed Temporary Absence program from Mountain
Institution.
On April 27, 1979, the applicant was convicted
of rape, breaking and entering and committing an
indecent assault and a second rape for which he
was sentenced respectively to six years, three years
to be served consecutively, and eight years to be
served concurrently.
On November 24, 1982, he was granted an
Unescorted Temporary Absence program consist
ing of forty-eight hours outside the penitentiary
every month, in order to meet socially with Eric
Powell, an Anglican priest and friend of the appli
cant, and with a family by the name of Pringle. On
the first temporary absence, December 24, 1982,
(Christmas eve) he returned to the institution
having consumed alcoholic beverages. One of the
terms of his release on temporary absence was that
he not drink any intoxicants. Accordingly, his
Unescorted Temporary Absence (U.T.A.) pro
gram was cancelled.
In May of 1983, he applied for a new U.T.A.
program and on September 21, 1983, a hearing for
the purpose of considering his application was held
by the National Parole Board. On October 14,
1983, the applicant received a letter saying the
National Parole Board had granted him a U.T.A.
program consisting of four 12-hour absences per
month in the company of Mr. Powell. Part of the
purpose of the program was to allow the applicant
to attend an alcohol and drug treatment centre in
Surrey, British Columbia.
Before having been released for any unescorted
temporary absences, the applicant received a letter
from the Parole Board, dated November 25, 1983,
informing him that "The Board is in receipt of
confidential information which satisfies us that
you are a risk to re-offend on any form of release
at this time" and therefore his U.T.A. program
was cancelled. He sought information on the
nature of this confidential information but
received none.
Authority for the Board to approve U.T.A.s
derives from section 6 of the Parole Act, R.S.C.
1970, c. P-2, as amended by S.C. 1976-77, c. 53, s.
23:
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 or a
temporary absence without escort pursuant to the Penitentiary
Act and to revoke parole or terminate day parole.
Also relevant to the Board's authority is section
26.1 of the Penitentiary Act, R.S.C. 1970, c. P-6,
as enacted by S.C. 1976-77, c. 53, s. 42:
26.1 (1) Subject to any regulations made pursuant to the
Parole Act in that behalf, where, in the opinion of the National
Parole Board, it is necessary or desirable that an inmate should
be absent, without escort, for medical or humanitarian reasons
or to assist in the rehabilitation of the inmate, the absence may
be authorized by the Board for an unlimited period for medical
reasons and for a period not exceeding fifteen days for humani
tarian reasons or to assist in the rehabilitation of the inmate.
Although the Parole Act gives the Governor in
Council authority to make regulations respecting
the procedure to be followed in granting or revok
ing U.T.A.s (section 9), the Governor in Council
has not exercised this authority. The only regula
tions issued relevant to U.T.A.s are: the definition
of U.T.A.s in section 2 of the Parole Regulations
[SOR/78-428]; subsection 12(1) which sets out the
portions of the term of imprisonment an inmate
must serve before U.T.A.s may be authorized; and,
section 24 which deals with the number of votes
required by members of the Board, in order to
grant a U.T.A.
The Board, however, has issued a Policy and
Procedures Manual which it uses as guidance with
respect to the granting and rescinding of U.T.A.s.
Section 7 thereof provides as follows:
Section 7. Unescorted Temporary Absence
10.77 Cancellation or Termination
1. Cancellation Prior to Implementation
1.1 At any time prior to its implementation the releasing
authority may cancel the decision to grant an unescorted
temporary absence.
1.2 When an unescorted temporary absence is cancelled prior
to implementation, the inmate is subsequently informed in
writing by the releasing authority of the reasons for the cancel
lation, unless those reasons contain material for which the
Solicitor General can claim exemption from disclosure under
the Canadian Human Rights Act.
In regard to the exemption claimed for informa
tion not obtainable under the Canadian Human
Rights Act [S.C. 1976-77, c. 33], the procedure
parallels the regulations which govern the giving of
reasons respecting a refusal to grant parole by the
Board (section 17 of the Parole Regulations).
With respect to the revocation of the applicant's
U.T.A. program in this case, an affidavit, dated
February 7, 1984, filed by one of the members of
the Parole Board, Sarah McAlpine, states:
16. That the Board received on or about November 7, 1983,
from the Correctional Service a Progress Summary report
dated November 1, 1983, concerning the applicant ... stating
in part
"We have received a confidential report dated 1983/10/17
regarding his activity in the institution.
In view of the new information, we are not prepared to
support Cadieux and we therefore recommend that his
U.T.A. program be cancelled ..."
21. That, on November 17, 1983, the Board cancelled the
U.T.A. Program for the Applicant giving as reasons:
"The Board is in receipt of confidential information which
satisfies us that you are a risk to re-offend on any form of
release at this time."
which decision and reason were communicated to the Applicant
by letter from the Board dated November 25, 1983.. .
24. The information contained in the said confidential reports
in a class that contains information from employees of the said
Correction Service, other inmates and others supplied on a
voluntary basis and on the explicit understanding that the
identity of the informant and the nature of the information
provided will not be revealed save to the Correction Service ...
25. That disclosure of the said confidential report would expose
any source of information named therein or capable of being
identified to possible risk of physical injury or worse or to
threat of violence.
I believe that it is in the public interest that the said confiden
tial reports, in their entirety and as a class, be immune from
disclosure.
Counsel for the applicant argues that the refusal
by the Board to disclose the reasons for its decision
to the applicant and the concomitant failure to
give him an opportunity to respond is a denial of
the principles of fundamental justice as provided
for in section 7 of the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.)].
There are three issues raised by this case as I see
it: (1) whether the decision-making process
respecting U.T.A.s is of such a nature that it
attracts the rules of fundamental justice; (2) if the
answer to this is yes, then one must ask whether
the rules of fundamental justice have been
infringed in this case; and (3) even if this is so,
whether the refusal to grant access to the confi
dential information in question was made pursuant
to a "reasonable limit prescribed by law as can be
demonstrably justified in a free and democratic
society" (as allowed by section 1 of the Canadian
Charter of Rights and Freedoms).
Nature of U.T.A.s—a Form of Liberty within the
Scope of Section 7 of the Charter?
With respect to the first issue, both counsel
agreed that there are no reported decisions dealing
with U.T.A.s. There is, however, abundant author
ity that decisions of the National Parole Board
respecting the revocation of parole are reviewable
by certiorari, independently of any Charter argu
ment that might be made: Couperthwaite v. Na
tional Parole Board, [1983] 1 F.C. 274; 70 C.C.C.
(2d) 172 (T.D.); Howarth v. National Parole
Board, [1976] 1 S.C.R. 453 (although the Court
held that revocation of parole was an administra
tive not a judicial or quasi-judicial decision-mak
ing function, by implication it decided that such
decisions were reviewable under section 18 of the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c.
10] for compliance with the fairness doctrine);
Dubeau v. National Parole Board, [1981] 2 F.C.
37; [1980] 6 W.W.R. 271 (T.D.); Morgan v.
National Parole Board, [ 1982] 2 F.C. 648; 65
C.C.C. (2d) 216 (C.A.).
Whether or not revocation of parole attracts the
protection of section 7 of the Canadian Charter of
Rights and Freedoms does not appear to have
been the subject, as yet, of any appellate court
decision. There is, however, a plethora of trial
decisions holding that it does; Re Cadeddu and
The Queen (1982), 4 C.C.C. (3d) 97 (Ont. H.C.);
R. v. Lowe (1983), 3 C.R.D. 900.150-03; 9 W.C.B.
349 (B.C.S.C.); R. v. Nunery (1983), 5 C.R.R. 69;
2 C.R.D. 900.150-02 (Ont. H.C.); R. v. Martens
(1983), 3 C.R.D. 900.150-02 (B.C.S.C.); Re Swan
and The Queen (1983), 7 C.C.C. (3d) 130
(B.C.S.C.); R. v. Mason (1983), 3 C.R.D.
900.150-04 (Ont. H.C.). I agree with these
decisions.
It seems clear that the interest of an inmate
affected by a decision of the National Parole
Board revoking his U.T.A. is similar to that affect
ed when either his day parole or full parole is
revoked. Under U.T.A. an inmate is allowed to be
outside the prison for a temporary period of time.
This is "liberty" of a more limited nature than is
the case with full parole or day parole, but it is
similar in character to the latter. Thus, in my view,
decisions respecting U.T.A.s also fall within the
scope of the rules respecting certiorari at common
law, as well as being subject to the requirements of
fundamental justice prescribed by section 7 of the
Charter. The fact that there is no procedure set
out by regulation for dealing with U.T.A.s does
not change their character.
This raises the question whether the fact that
the applicant's U.T.A. program had not been
implemented or the fact that the granting of a
U.T.A. program itself might be labelled a privi
lege, limits or lessens the applicability of the fair
ness doctrine or the guarantees of fundamental
justice. I notice, for example, that the distinction
between rights and privileges is one which has
played, in the past, this kind of distinguishing role.
See: Rogers v. Secretary of State for the Home
Department, [1972] 2 All ER 1057 (H.L.), a case
to which I will refer in greater detail later; Davis,
K. C., Administrative Law Text, 3rd ed. 1972, at
pages 186 ff.; Davis, K. C., Administrative Law
Treatise, 2nd ed. 1978, Vol. 2, at pages 369 ff.;
Reid, R. F., Administrative Law and Practice,
1971, at page 149 and Lazarov v. Secretary o)
State of Canada, [1973] F.C. 927 (C.A.), espe
cially at page 935.
With respect to present Canadian law, the
Supreme Court decision in Martineau v. Matsqui
Institution Disciplinary Board, [1980] 1 S.C.R.
602 clearly indicates that the distinction between
"rights" and "privileges" is not one which should
ground a difference between allowing and not
allowing judicial review. That case, of course, con
cerned the decision of a penitentiary disciplinary
board. Mr. Justice Dickson [as he then was], at
pages 622-623, wrote:
In my opinion, certiorari avails as a remedy wherever a
public body has power to decide any matter affecting the rights,
interests, property, privileges, or liberties of any person.
I think it would be inconsistent with the princi
ples underlying this decision to determine the
applicability of section 7 of the Charter on the
basis of whether a right or privilege was involved,
particularly when a person's liberty is at stake. It
is true that section 7 specifically applies to "the
right to life, liberty and security of the person".
But, "right" is a word used in two senses: some
times it is used in a narrow sense, as distinct from
"privileges", "powers", etc.; at other times, it is
used in a more generic sense as encompassing all
those concepts. I take it as being used in the latter
sense in section 7. Accordingly, I think the fact
that one is dealing with the granting of a privilege
does not, in this case, lessen the applicability of
either the rules of fairness applied through
common law certiorari or the guarantee of funda
mental justice provided for by the Charter.
Requirement of Fundamental Justice
Under both the rules of fairness, applicable to
an administrative decision, and under the rules of
fundamental justice set out in the Charter, a cardi
nal principle is that the person whose liberty is
being decided upon should have the right to know
the case made against him and an opportunity to
respond. However, it is clear that the rules of
fairness do not always require disclosure of all
information the decision-making body has before
it. For example, in Rex v. Canterbury (Arch-
bishop). Ex parte Morant, [1944] 1 K.B. 282
(C.A.), it was held that confidential letters rele
vant to the selection of a rector for a parish need
not be disclosed. In coming to this decision, the
Court said, at page 291, with respect to the
appointment:
It is a right the exercise of which is to be subject to curtailment
in the interests of the persons whose spiritual welfare will
depend on the proper exercise of the right.
And at page 293:
To impose on him [the Archbishop] the obligation to disclose to
the patron the material which comes to his hand would make it
impossible for him satisfactorily to perform his delicate duties.
See also: Reg. v. Gaming Board for Great Britain,
Ex parte Benaim and Khaida, [1970] 2 Q.B. 417
(C.A.) and Reg. v. Secretary of State for Home
Affairs, Ex parte Hosenball, [ 1977] 1 W.L.R. 766
(C.A.), and R. v. Teachers Tribunal: Ex parte
Colvin, [1974] V.R. 905 (S.C.).
Having found that the rules of fairness do not
always require the disclosure of all information,
does section 7 of the Charter of Rights demand a
higher standard? Section 7 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.
In this regard I note that Mr. Justice McEach-
ern of the British Columbia Supreme Court in Re
Swan and The Queen (1983), 7 C.C.C. (3d) 130,
at page 141, said of sections 7 and 9 of the
Charter:
These provisions impatiently await analysis by appellate
authority, but they seem to me to tilt the scales strongly
towards the requirements of natural justice rather than just
procedural fairness in the post-revocation process .... Where
not just the rights and privileges of citizens are involved, but
their very liberty, then there must be more than just an
administrative inquiry or a discretionary hearing. As Laskin,
C.J.C. pointed out in Mitchell v. The Queen, supra, our
citizens should not be expected to take the Board's word that
they have acted fairly, and justice cannot tolerate a hearing
only as a matter of grace.
Similarly, Mr. Justice Potts in Re Cadeddu and
The Queen (1982), 4 C.C.C. (3d) 97 (Ont. H.C.),
has held that the requirements of section 7 are
more extensive than the common law doctrine of
fairness or natural justice. Under the rules of
fairness, an applicant is not entitled to an in-per
son hearing. But, it was held in the Cadeddu case
that for decisions respecting parole revocation, in
order to meet the Charter requirements of funda
mental justice, an in-person hearing should be
held.
On the other hand, Nitikman D.J., in Re
Howard and Presiding Officer of Inmate Discipli
nary Court of Stony Mountain Institution (1983),
8 C.C.C. (3d) 557 (F.C.T.D.), at page 561 quoted
the Adjudicator:
In dealing with the Section 7 argument submitted by Diane
Dzydz, I express the opinion that Section 7 does not create a
new wave of rights nor does it elevate any greater degree of
responsibility by an administrative tribunal such as the Inmate
Disciplinary Board is.
I would not pretend to answer the general ques
tion of whether section 7 demands a higher stand
ard of conduct with respect to administrative deci-
sion-making bodies to which it applies than do the
rules of fairness. In some instances it may do so, as
the decision of Mr. Justice Potts in Re Cadeddu
(supra) indicates. In reading the jurisprudence in
this area one is struck time and time again by the
fact that nothing more seems to be meant by the
distinction between fairness and natural justice
than an indication that the rules of natural justice
differ in different circumstances. See: Reg. v.
Secretary of State for Home Affairs, Ex parte
Hosenball, supra, at page 786:
What is fair cannot be decided in a vacuum: it has to be
determined against the whole background of any particular
case.
And Reg. v. Gaming Board (supra) at page 430:
It is not possible to lay down rigid rules as to when the
principles of natural justice are to apply: nor as to their scope
and extent. Everything depends on the subject matter•
In any event, I do not find it necessary to answer
the question in the terms set out in argument
before me since I think that applying the higher
test, that of the requirements of natural justice,
leads to the same conclusion as pertains under the
rules of fairness. Under either rules, in my view,
there are circumstances in which an inmate may
be denied knowledge of the reasons underlying the
revocation of his U.T.A. program.
The starting point, it seems to me, is the deci
sion of the Supreme Court in The Queen v. Snider,
[1954] S.C.R. 479. Mr. Justice Rand in describing
the circumstances in which disclosure would not be
required, in the context of a criminal trial, said at
page 482:
It [the privilege of confidentiality] springs, then, from a
confidential communication coupled with a paramount public
interest in permitting the secrecy surrounding the communica
tion or its contents to be maintained. This is perhaps best
illustrated by the privilege relating to communications between
husband and wife or between solicitor and client ....
Of a similar nature are communications by an informer to
public enforcement officers ... .
And Mr. Justice Kellock, at page 487:
There is, accordingly, not only a public interest in maintaining
the secrecy of documents where the public interest would
otherwise be damnified, as, for example, where disclosure
would be injurious to national defence or to good diplomatic
relations, or where the practice of keeping a class of document
is necessary for the proper functioning of the public service, but
there is also a public interest which says that "an innocent man
is not to be condemned when his innocence can be proved ...."
It cannot be said, however, that either the one or the other must
invariably be dominant. [Underlining added.]
See also the decision of the Supreme Court in
Bisaillon v. Keable, [1983] 2 S.C.R. 60, at pages
96 ff.; 2 D.L.R. (4th) 193, at pages 222 ff. for a
more recent discussion of the balancing of
interests.
While, of course, not binding on Canadian
courts, this principle has received elucidation in a
number of recent United Kingdom cases which, to
me, seem directly relevant to the case at bar.
The first is that of Rogers v. Secretary of State
for the Home Department, [1972] 2 All ER 1057
(H.L.). In this case a person who had been unsuc
cessful in obtaining a gaming licence attempted to
obtain, for the purposes of prosecuting a suit in
criminal libel, production of a letter written to the
Board containing information on his character,
reputation and related matters. The House of
Lords held that disclosure was not required, that
protection for the document could be claimed, not
on the basis of Crown privilege but because the
public interest required such communications to
the Board to be immune from disclosure. It was
held that this was necessary in order to allow the
Board to effectively perform its statutory duty. In
the performance of that duty it was necessary to
obtain, from varying sources, the fullest possible
information about the applicant; if the persons
volunteering such information were afraid of
repercussions, they would not speak up.
Lord Reid, at page 1060, said:
The ground put forward has been said to be Crown privilege.
I think that that expression is wrong and may be misleading.
There is no question of any privilege in the ordinary sense of
the word. The real question is whether the public interest
requires that the letter shall not be produced and whether that
public interest is so strong as to override the ordinary right and
interest of a litigant that he shall be able to lay before a court
of justice all relevant evidence ....
The claim in the present case is not based on the nature of
the contents of this particular letter. It is based on the fact that
the board cannot adequately perform their statutory duty
unless they can preserve the confidentiality of all communica
tions to them regarding the character, reputation or antece
dents of applicants for their consent.
The board require the fullest information they can get in order
to identify and exclude persons of dubious character and repu
tation from the privilege of obtaining a licence to conduct a
gaming establishment. There is no obligation on anyone to give
any information to the board. No doubt many law abiding
citizens would tell what they know even if there was some risk
of their identity becoming known, although many perfectly
honourable people do not want to be thought to be mixed up in
such affairs. But it is obvious that the best source of informa
tion about dubious characters must often be persons of dubious
character themselves. It has long been recognised that the
identity of police informers must in the public interest be kept
secret and the same consideration must apply to those who
volunteer information to the board.
Two observations must be made about this case.
Although production of the letter was sought, its
contents and author were known by the applicant,
a copy of the letter already being in the hands of
the plaintiff as a result of an unauthorized release.
Secondly, the Court, as a whole, decided that
non-disclosure was appropriate on the basis of the
class of documents into which the letter fell.
Per Lord Reid, at page 1061:
It is possible that some documents coming to the board could
be disclosed without fear of such consequences. But I would
think it quite impracticable for the board or the court to be sure
of this. So it appears to me that, if there is not to be very
serious danger of the board being deprived of information
essential for the proper performance of their difficult task,
there must be a general rule that they are not bound to produce
any document which gives information to them about an
applicant.
Natural justice requires that the board should act in good faith
and that they should so far as possible tell him the gist of any
grounds on which they propose to refuse his application so that
he may show such grounds to be unfounded in fact. But the
board must be trusted to do that; we have been referred to their
practice in this matter and I see nothing wrong in it. [Underlin-
ing added.]
In 1976, the House of Lords was again seized of
the matter of non-disclosure of confidential docu
ments in a judicial setting. In D. v. National
Society for the Prevention of Cruelty to Children,
[1978] A.C. 171, a mother sued the Society for
personal injuries (mental and emotional) which
had resulted from the investigation of a false
complaint about her with respect to the possible
maltreatment of her child. The Society denied
negligence and applied for an order that there
should be no discovery or inspection of any of the
documents relating to the complaint. Non-disclo
sure was claimed on the ground that the proper
performance by the Society of its duties under its
charter required the absolute protection of infor
mation given to it in confidence. The Court held
that non-disclosure in the public interest was
required in this case. The Court also held, how
ever, that the provision of information in confi
dence does not, of itself, provide a ground for
non-disclosure of either the nature of the informa
tion or the identity of the informant. Per Lord
Diplock at page 218:
The fact that information has been communicated by one
person to another in confidence, however, is not of itself a
sufficient ground for protecting from disclosure in a court of
law the nature of the information or the identity of the infor
mant .... The private promise of confidentiality must yield to
the general public interest that in the administration of justice
truth will out, unless by reason of the character of the informa
tion or the relationship of the recipient of the information to the
informant a more important public interest is served by protect
ing the information or the identity of the informant from
disclosure in a court of law.
See also Lord Simon of Glaisdale, at page 237,
and Lord Edmund-Davies, at page 242. Lord
Edmund-Davies quoted from Professor Hanbury,
as follows:
Few situations in life are more calculated to arouse resentment
in a person than to be told that he has been traduced, but
cannot be confronted with his traducer. It is submitted that,
ideally, nothing but the very pressing demands of public secu
rity, where the vital interests of the community are unquestion
ably involved, can require that private individuals should be
expected to acquiesce in their vulnerability by an invisible foe.
I would make reference also to Collymore v.
Attorney-General, [1970] A.C. 538 (P.C.). The
Judicial Committee of the Privy Council had
before it an appeal from the Court of Appeal of
Trinidad and Tobago. Part of the claim by the
appellant was that paragraph 2(e) of the Constitu
tion of that country had been infringed. Paragraph
2(e) provided that no Act of Parliament should
"deprive a person of the right to a fair hearing in
accordance with the principles of fundamental jus
tice for the determination of his rights and obliga
tions." [Emphasis added.] The challenged legisla
tion in question allowed an industrial court to
receive and base its conclusions on evidence which
it would not make known to the parties. It is to be
particularly noted in this case that the Privy Coun
cil was called upon to interpret the words "the
principles of fundamental justice" in a constitu
tional guarantee of rights, and not merely the
doctrine of fairness.
The Privy Council in deciding the issue said at
page 550:
This problem is not new. There are exceptional circum
stances when a court finds itself in this dilemma: if it is known
that the information it obtains will be disclosed to the parties
before it and also perhaps to the world at large, then those
persons who have the information may, despite their legal
obligation, resort to one device or another to avoid giving it, or
will give information which is not the truth or the whole truth.
Justice may not therefore be done. On the other hand, the
knowledge that the court will treat the information in strict
confidence greatly increases the probability that it will be
forthcoming. Yet in this case the parties themselves will under
standably feel aggrieved that they have not had the chance of
verifying or testing the information which the court has
secured, and which in some cases may be decisive.
A case raising a similar issue is In re K. (Infants) heard by
the House of Lords in 1963 and reported in [1965] A.C. 201.
There the mother of two wards of court asked to see two
confidential reports on the infants which the Official Solicitor
had made to the judge. The judge refused to disclose them to
her. The Court of Appeal reversed the judgment. The House of
Lords restored it. There are, of course, certain special features
about cases concerning infants, since the welfare of an infant
has to be treated as the first and paramount consideration. But
the mother in her appeal to the House of Lords insisted that the
principles of natural justice required the disclosure of the
reports to her, she being a party to the wardship proceedings. In
the course of dealing with this claim pronouncements were
made in the House of Lords of a general character which may
be usefully quoted.
Lord Evershed, at p. 218 of the report, quoted and adopted
the following observation of Tucker L.J. in Russell v. Duke of
Norfolk (1949) 65 T.L.R. 231:
"There are, in my view, no words which are of universal
application to every kind of inquiry and every kind of domes
tic tribunal. 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 under consideration, and so forth."
Lord Devlin said, at p. 238:
"But a principle of judicial inquiry, whether fundamental or
not, is only a means to an end. If it can be shown in any
particular class of case that the observance of a principle of
this sort does not serve the ends of justice, it must be
dismissed, otherwise it would become the master instead of
the servant of justice. Obviously, the ordinary principles of
judicial inquiry are requirements for all ordinary cases and it
can only be in an extraordinary class of case that any one of
them can be discarded."
And again, at p. 240:
"Where the judge sits as an arbiter between two parties, he
need consider only what they put before him. If one or other
omits something material and suffers from the omission, he
must blame himself and not the judge. Where the judge sits
purely as an arbiter and relies on the parties for his informa
tion, the parties have a correlative right that he should act
only on information which they have had the opportunity of
testing. Where the judge is not sitting purely, or even
primarily, as an arbiter but is charged with the paramount
duty of protecting the interests of one outside the conflict, a
rule that is designed for just arbitrament cannot in all
circumstances prevail."
In cases before the industrial court the issue is not solely
between employers and employed. The people of Trinidad may
also be parties: and the court is directed by section 9 of the
Industrial Stabilisation Act, in addition to taking into account
the evidence presented on behalf of all the parties, to be guided
by a number of other specified considerations, e.g., "the need to
maintain and expand the level of employment": "the need to
maintain for Trinidad and Tobago a favourable balance of
trade and balance of payments": "the need to ensure the
continued ability of the Government of Trinidad and Tobago to
finance development programmes in the public sector" and so
on. In discharging this duty the court may well have to seek
information which it feels cannot be disclosed to the parties
before it. This is a matter in its discretion, and as the learned
Chief Justice indicated in his judgment any alleged wrongful
exercise of its discretion might be tested on appeal as a matter
of law. In these circumstances their Lordships do not feel that
they can uphold the contention that section I1 (2) of the Act
either in its original or altered form infringes the Constitution.
In my view, the reasoning in these cases is
directly relevant to the applicant's claim in this
case. I am conscious of the fact that in none of the
cases cited could one say that a person's "liberty"
was at stake. Normally, when a subject's liberty is
in issue, the non-disclosure of the substance of the
claims against him automatically result in his re
maining at large (see also Marks v. Beyfus
(1890), 25 Q.B.D. 494 (C.A.)). Normally, without
disclosure of the information a conviction cannot
be obtained. An inmate in prison, however, is in a
different situation. The "liberty" he is claiming
pursuant to a U.T.A. or parole program is not the
absolute liberty to which every citizen is entitled,
but only a conditional liberty dependent upon cer
tain conditions and granted as a matter of discre
tion by the Parole Board. This discretion is exer
cised (to approve a U.T.A. program) when the
Board determines that such a program could serve
a rehabilitative purpose and on a determination
that the inmate is able to function as a responsible
member of society during the time he is outside
the prison. An inmate is not in the same position as
a person entitled to absolute liberty who is charged
with a criminal offence. Thus it is not surprising
that the rules of fairness or natural justice which
pertain in that situation will not necessarily be the
same as those applicable to a determination of
whether or not a U.T.A. program is granted or
revoked.
I think it will be rare that an inmate cannot be
told at least the gist of the reasons against him.
This would especially be so if the alleged conduct
took place outside the institution when the inmate
was at large. I can, however, more easily envisage
some situations when it might be necessary to
refuse to disclose even the gist of the case against
him when the information relates to conduct
occurring within the institution. This might be
necessary if the content of the information was
such that its disclosure would automatically lead
to the identity of the informer becoming known.
(It is trite law that the identity of informers is
protected from disclosure.) Refer: Solicitor Gener
al of Canada et al. v. Royal Commission of
Inquiry (Health Records in Ontario) et al., [1981]
2 S.C.R. 494 and Bisaillon v. Keable, [1983] 2
S.C.R. 60; 2 D.L.R. (4th) 193. In the context of
the prison situation, safety and order within the
prison may particularly require the non-disclosure
of the identity of informers. Non-disclosure might
also be necessary if such disclosure would
automatically lead to the revealing of information
collection methods and thus substantially under
mine the future functioning of the Board. In cir
cumstances such as these, I do not think the Board
should be denied the right to rely on and use
information which comes to its knowledge even
though it does not pass the gist of that information
on to the inmate. The public interests in preventing
repeat offences while the inmate is at large, in
maintaining security and order in the penal institu
tion, and in preserving the Parole Board's ability to
function effectively may outweigh the normal rule
that a person is entitled to know the gist of the
case against him. But, the occasions on which this
is justified must be rare. There must be an element
of necessity; mere convenience for the functioning
of the Board is not enough.
Counsel for the applicant cited the decision by
the Federal Court of Appeal in Lazarov v. Secre
tary of State of Canada, [1973] F.C. 927 as
support for the proposition that an inmate in the
position of the applicant is entitled to be told the
gist of the case against him. Particular reference
was made to page 936 and the quotations therein
from Reg. v. Gaming Board for Great Britain, Ex
parte Benaim and Khaida, [ 1970] 2 W.L.R. 1009
(C.A.) and In re H.K. (An Infant), [1967] 2 Q.B.
617. In my view the Court of Appeal in the
Lazarov case did not have to deal with the issue
raised in the present case. The Lazarov case dealt
only with the question of whether the audi alteram
partem rule applied generally to a discretionary
decision of the Minister in refusing to grant citi
zenship (an administrative decision) when there
were no rules of procedure prescribed by statute.
The Court of Appeal held that it did. The Lazarov
case did not deal with and did not have to deal
with the question of when, if ever, limitations on
the audi alteram partem rule were justified in the
public interest.
The general principle enunciated in the Lazarov
case equally applies to decisions of the National
Parole Board respecting U.T.A.s. In general an
inmate is entitled to know the substance of the
reasons for revocation of his U.T.A. program. This
does not mean he is entitled to know the identity of
the source of information. This does not mean that
he is entitled to production of the actual docu
ments themselves nor to all the details of the case
against him. But, he is generally entitled to know
the substance of the reasons for the revocation of
his U.T.A. (or full parole or day parole as the case
may be). Otherwise he is unable to make reply.
It seems clear also, from the jurisprudence cited
above, that the mere fact that information was
provided in confidence is not, in itself, sufficient
reason to justify non-disclosure of that informa
tion. See also Snider case (supra), [1954] S.C.R.
479; Minister of National Revenue v. Huron Steel
Fabricators (London) Ltd., [1973] F.C. 808
(C.A.); and Science Research Council v Nassé,
[1979] 3 All ER 673 (H.L.). I think that such fact
is particularly not sufficient when one is consider
ing the rules of fundamental justice required by
section 7 of the Charter. To allow non-disclosure
to be justified merely on the ground that the
information was given in confidence, is far too
weak a justification for a limitation on the scope of
a constitutional guarantee. This is particularly so
when a person's liberty is at stake (even though
that liberty be of a limited and conditional
nature).
The question thus arises as to whether a class
exemption can be claimed in a case such as the
present. The jurisprudence indicates that the
courts are less and less willing to accept claims for
privilege framed in terms of class exemptions. The
reasoning of the Ontario Court of Appeal in
Smerchanski v. Lewis (1981), 120 D.L.R. (3d)
745 is instructive. In that case, the Court held that
disclosure of statements made to the police could
not be prevented merely on the ground that they
fell as a class within the public interest privilege.
At page 751:
There are certain classes of documents including those relating
to Cabinet proceedings, the conduct of foreign affairs, national
defence and security which by their very nature are generally
acknowledged to be privileged. While certain classses of docu
ments dealing with easily recognizable state secrets are almost
automatically recognized as privileged, the obvious tendency of
decisions since Conway v. Rimmer has been to restrict class
privilege.
Cromarty J. held that the statements given to the police were
entitled to the protection of "class" privilege to prevent the
prosecution of criminal offences from being compromised by
premature disclosure .... In my respectful opinion he erred in
concluding that the statements were privileged from production
as a "class" and in failing to consider whether the "contents" of
all or part of the statements might be admissible.
The authorities establish that statements given to the police
have never been regarded as falling within the class of docu
ments automatically privileged for production.
Refer also: Ellis v. Home Office, [1953] 2 Q.B.
135 (C.A.); Gagnon v. Commission des Valeurs
Mobilières du Québec et al., [1965] S.C.R. 73
(both of which were decided before Conway v.
Rimmer, [1968] A.C. 910 (H. L.)). And in Minis
ter of National Revenue v. Huron Steel Fabrica-
tors (London) Ltd., [ 1973] F.C. 808 (C.A.) at
page 810, Thurlow J. [as he then was] said with
respect to a claim for confidentiality of tax
returns:
This, to my mind, amounts to nothing more than the putting
forward by a somewhat different wording of an alleged public
interest in keeping a whole class of documents from disclosure
on grounds of the necessity to ensure candour and truthfulness
by persons who file income tax returns. Such a reason at best
has, in my opinion, very little weight or validity by itself ....
There are, of course, stronger reasons in this
case for allowing for non-disclosure on a class
basis than exist with respect to income tax returns.
These are the interests, as noted above, of protect
ing the public, preserving the safety and order
within the penal institution and not undercutting
the effective functioning of the Parole Board.
These may all be adequate reasons to justify a
refusal, on a class basis, to produce the actual
confidential reports themselves to the inmate, but
in my view, they do not justify a refusal to disclose
to him the gist of the case against him.
The House of Lords decision in Science
Research Council y Nassé, [1979] 3 All ER 673 is
instructive. In that case an employee who felt she
had been discriminated against sought access to
the annual performance appraisals prepared by the
employer on other employees with whom she had
been in competition for promotion. Disclosure was
resisted on the ground that such reports were
confidential. The House of Lords held that under
the relevant rules of court disclosure was a matter
of discretion, to be exercised if it was in the
interest of justice to do so. Factors to be con
sidered in assessing this would be: whether disclo
sure was necessary for fairly disposing of the pro
ceedings, or for saving costs; whether the
documents had been prepared in confidence and
the extent to which their disclosure would affect
the interests of third parties. The Court held that
in coming to a decision as to whether disclosure
should be ordered, it was perfectly proper to con
sider whether justice could be done by special
measures, such as covering up confidential but
irrelevant parts of the documents or by substitut
ing anonymous references for specific names.
The claim in the present case is with respect to a
Charter guarantee. I do not think that non-disclo
sure of the gist of the case against the applicant
can be justified on the basis of a claim for a class
exemption. This does not satisfy the requirements
of section 7. As noted above, while there may be
occasions on which non-disclosure of the gist of a
case against an inmate is justified, the reasons
therefore must relate to the specific content of the
information in question. There must be a nexus
between the content of that information and the
protection of the public interest said to be served
by non-disclosure.
It remains then to consider the affidavits filed in
this case: that of Sarah McAlpine, a member of
the National Parole Board, and that of Fraser
Simmons, a regional manager of case preparation
for the National Parole Board. Nowhere in them
do I find that the affiants have addressed their
minds to whether the gist of the reasons, or part
thereof, for the cancellation of Mr. Cadieux's
U.T.A. program could be disclosed to him. Nor
have they considered whether special measures
might be taken which would allow substantial or
partial disclosure of the information sought to be
disclosed without damage to the public interest of
the kind noted above. The overall tone and content
of the affidavits is one of claiming a blanket class
exemption.
It may be that sufficient reasons exist in this
case for refusing disclosure of even the gist of the
case against Mr. Cadieux. If this is so, then new
affidavits, containing a greater degree of specifici-
ty, can cure that defect. It is my view, however,
that if it becomes necessary to make such a claim
on some second application concerning this matter,
the Board should be prepared to produce for the
Court the documents in question. This might be
done in a sealed envelope together with a specific
explanation as to why, in its view, non-disclosure is
justified (a procedure similar to that developed at
common law in privilege cases and similar to that
existing under section 36.1 of the Canada Evi
dence Act [R.S.C. 1970, c. E-10, as enacted by
S.C. 1980-81-82-83, c. 111, s. 4]). I would not
adopt the approach of the House of Lords in the
Rogers case (supra) under which a decision
respecting non-disclosure was left unreviewable by
the Courts. Rather, the reasoning of Mr. Justice
McEachern in Re Swan (supra) and the reliance
by him on the comments of Laskin C.J. in the
Mitchell case [Mitchell v. The Queen, [ 1976] 2
S.C.R. 570] are relevant here. An inmate should
not be expected to take only the Board's word.
While it might be rare for a court to interfere with
the Board's judgment on a matter such as this, the
jurisprudence of this Court indicates that on occa
sion excessive claims for privilege have been made,
albeit not by the National Parole Board. See: Blais
v. Honourable Robert Andras, [1972] F.C. 958
(C.A.); Churchill Falls (Labrador) Corp. Ltd. v.
The Queen (1972), 28 D.L.R. (3d) 493
(F.C.T.D.); Minister of National Revenue v.
Huron Steel Fabricators (London) Ltd., [1973]
F.C. 808 (C.A.).
In those cases review by the Court was pursuant
to subsection 41(1) [repealed by S.C. 1980-81-82-
83, c. 111, s. 3] of the Federal Court Act. The
successor to subsection 41(1), the present section
36.1 of the Canada Evidence Act, does not seem to
directly apply in the present situation since it is
expressed to govern the disclosure of information
"before a court, person or body with jurisdiction to
compel the production of information". The
application before me is one for certiorari, to
quash the decision of the National Parole Board; it
is not asking for an order to compel the production
of the information in question. Nevertheless, sec
tion 36.1 and subsection 41(1) before it are, in
many ways, merely codifications of the common
law, with some modifications thereof. Thus, even if
section 36.1 does not expressly apply to the present
case, in my view, the common law makes a proce
dure such as that outlined above, allowing for
review by the Court of the Board's decision,
applicable.
Reasonable Limit Prescribed by Law as can be
Demonstrably Justified in a Free and Democratic
Society?
The argument of counsel for the respondents
focussed virtually exclusively on this aspect of the
case. Great reliance was placed on the provisions
of Part IV of the Canadian Human Rights Act
(and its successor the Privacy Act [S.C. 1980-81-
82-83, c. 111, Schedule II]). The gist of the argu
ment was that even if the requirements of "funda-
mental justice" had been breached in this case,
this had occurred pursuant to a "reasonable limit
prescribed by law as can be demonstrably justified
in a free and democratic society" (as is allowed by
section 1 of the Canadian Charter of Rights and
Freedoms). As noted above, the Parole Regula
tions (subsection 17(3)) specifically provide that in
the case of cancellation of parole, the inmate is to
be informed of the reasons therefore except for
informaton described in paragraphs 54(a) to (g) of
the Canadian Human Rights Act, which need not
be disclosed.
In the case of U.T.A.s, this qualification is
contained not in regulations but in the Manual of
Policy and Procedures established by the executive
committee of the Board. This Manual is issued
pursuant of section 25 of the Parole Regulations
which provides:
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; and
(b) when requested by the Chairman of the Board, advise the
Chairman on policies and procedures in respect of his duties
and functions under the Act.
I am not convinced that a procedure manual so
published could be said to be "prescribed by law"
as that term is used in section 1 of the Charter. If
the procedure manual had been approved by the
Governor in Council as required by subsection
3(6) of the Parole Act [as am. by S.C. 1976-77, c.
53, s. 18], this conclusion would be different.
However, I do not need to decide this issue which
was not extensively argued before me, since even if
the manual partook of the status of law, I would
adopt the words of my colleague Strayer J. in
Latham v. Solicitor General of Canada, [1984] 2
F.C. 734; 39 C.R. (3d) 78; 12 C.C.C. (3d) 9
(T.D.). At page 747 (F.C.), he wrote respecting
subsection 17(3) of the Parole Regulations:
It appears that subsection 17(3) of the Parole Regulations
would provide a legally effective limitation on any common law
fairness requirement of disclosure. It would not be effective, in
my view, in limiting the right which the parolee has under
section 7 of the Canadian Charter of Rights and Freedoms.
I share this view. The Privacy Act and Part IV
of the Canadian Human Rights Act before it were
enacted for the purpose of giving individuals access
to information held by the government concerning
them. The exemptions from the requirement to
disclose are much broader than those applicable to
decision-making by either an administrative or a
judicial body. Of course, if such exemptions are
specifically made applicable by statute to either an
administrative or a judicial decision-making body
(as is the case with subsection 17(3) of the Parole
Regulations) then, in the absence of a constitu
tional guarantee to the contrary, this would consti
tute a valid limitation on the rules of fairness or
natural justice. However, the exemption is certain
ly too broadly framed to be a reasonable limit
pursuant to section 1 of the Charter.
Because of the view I take of this argument, I
also do not need to decide whether it is section 54
of the Canadian Human Rights Act which is
incorporated by reference into the Manual of
Policy and Procedures or whether it is the Privacy
Act. Part IV of the Canadian Human Rights Act
is now repealed and replaced by the Privacy Act.
The better view may very well be that the incorpo
ration by reference of the Canadian Human
Rights Act, continues as an incorporation of the
relevant provisions as they existed on the date of
the issue of the manual, despite the fact that Part
IV of that Act has been repealed for its own
independent purposes. In any event, in either case
the result is the same, the limitation prescribed is
not reasonable in the terms of section 1 of the
Charter.
Accordingly, the decision of the Board will be
quashed and the matter referred back to the Board
for reconsideration by it, such reconsideration to
proceed on the basis that a determination is
required as to whether the applicant can be
informed of the gist of the case against him.
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.