A-138-95

Attorney General of Canada and National Parole Board (Appellants) (Respondents)

v.

James Ralph MacInnis (Respondent) (Applicant)

Indexed as: MacInnis v. Canada (Attorney General) (C.A.)

Court of Appeal, Strayer, MacGuigan and McDonald JJ.A."Ottawa, June 28 and August 23, 1996.

Constitutional law " Charter of Rights " Life, liberty and security " Appeal from trial judgment holding inmate serving indeterminate sentence deprived of right to liberty under Charter, s. 7 in violation of principles of fundamental justice by National Parole Board procedures at biennial review " NPB refusing convict's request to appear by counsel, examine authors of clinical reports " Convict permitted to be represented by barrister, given copies of clinical reports, allowed to submit written interrogatories " S. 7 engaged in hearings before NPB " Fundamental justice not requiring requested procedures " Requirements of fundamental justice in administrative context reviewed " As ample opportunity to challenge reports, cross-examination of authors not necessary to ensure fairness " Board's procedural rulings sufficiently addressed dual requirements of protecting society, giving convict fair hearing as required by s. 7 " Refusal to grant enhanced procedures not violating right to liberty under s. 7.

Parole " Appeal from trial judgment holding inmate serving indeterminate sentence deprived of right to liberty under Charter, s. 7 in violation of principles of fundamental justice by NPB procedures at biennial review " NPB refusing convict's request to appear by counsel, examine authors of clinical reports " Convict permitted to be represented by barrister, given copies of clinical reports, allowed to submit written interrogatories " Criminal Code, s. 761 stipulating dangerous offender incarcerated for indeterminate period entitled to review of "condition, history and circumstances" every two years by Board " Corrections and Conditional Release Act providing limited right to counsel for convicts appearing before Board " Provisions, terminology leading to assumption Parliament not intending assistant's role before Board to be equivalent to counsel's role before judge, jury " Parole system unique, separate from courts, different considerations apply " Board's refusal to grant enhanced procedures not violating right to liberty under s. 7.

This was an appeal from the trial judgment holding that the National Parole Board's procedures during a biennial review of the respondent's indeterminate sentence deprived him of his right to liberty under Charter, section 7 in violation of the principles of fundamental justice. Section 7 guarantees the right to liberty and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Criminal Code, subsection 761(1) provides that a person who is in custody in a penitentiary for an indeterminate period of incarceration is entitled to a biennial review by the National Parole Board of his "condition, history and circumstances" to determine whether he should be granted parole. During one such review, the respondent sought to appear by counsel before the Board, to cross-examine the authors of certain clinical reports, or to have certain reports to which he objected excluded from evidence. The respondent had been permitted to have a barrister as his assistant, and he had been given copies of the clinical reports submitted to the Board which he was allowed to question by means of written interrogatories. The Board denied his requests and the respondent applied to the Court for declaratory relief. The Trial Judge found that the principles of fundamental justice required that an inmate serving an indeterminate sentence be granted both the right to appear before the Board by counsel and the right to examine the authors of certain reports. He found that hearings before the Board had to reflect differences associated with serving an indeterminate sentence as a person serving such a sentence has no prospect of release other than by parole.

Corrections and Conditional Release Act (CCRA), subsection 140(7) gives the offender the right to be "assisted" by the individual of his choice. Subsection 140(8) limits the role that the assistant can play during the parole hearing.

The issues were whether the Trial Judge erred in finding that (1) the respondent was deprived of his liberty by the Board's rulings and, (2) the Board's procedures were inconsistent with the principles of fundamental justice.

Held, the appeal should be allowed.

The Board correctly interpreted and implemented its governing legislation. The respondent requested procedures beyond those established in the CCRA. The legislation does not specifically preclude cross-examination, but leaves the matter to the Board's discretion. From the relevant provisions and the terminology employed it was apparent that Parliament did not intend for the assistant's role before the Board to be the equivalent of counsel's role before a judge or jury.

It is now settled law that section 7 is engaged in hearings before the National Parole Board. Section 7 recognizes the competing social interests of a fair hearing and protection of society by ensuring that an individual can be deprived of his or her liberty in accordance with the principles of fundamental justice. Fundamental justice does not require the procedures requested by the respondent. In the administrative context, fundamental justice encompasses procedural fairness, which varies with the circumstances. An increased role for counsel and the right to cross-examination of witnesses are not always required before administrative tribunals. The parole system is unique and separate from the courts and different considerations apply. Adherence by the Board to the common law rules of natural justice and the practices and procedures established by the CCRA constitutes full compliance with the principles of fundamental justice. Board hearings are different from judicial hearings in several respects.

Parliament must have realized that Parole Board hearings have an increased significance for those serving indeterminate sentences. Criminal Code, subsection 761(1) does not provide for a new trial or some form of judicial review every two years. The composition and mandate of the Board reflect its primary purpose, the protection of society. Absent a decision by Parliament that a dangerous offender should be reevaluated by a Trial Judge in a judicial proceeding, a hybrid process should not be created to meet the respondent's perceived needs.

As the respondent had an ample opportunity to challenge these reports, cross-examination of the authors was not necessary to ensure fairness. The Board's procedural rulings sufficiently addressed the dual requirements of ensuring that society is protected and the respondent has a fair hearing. The Board must first and foremost protect the Canadian public. The Board's refusal to grant the enhanced procedures requested did not violate the respondent's right to liberty under section 7.

statutes and regulations judicially considered

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 9, 15, 24(1).

Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 4(g), 101(a),(b),(f), 140(7),(8).

Criminal Code, R.S.C. 1970, c. C-34.

Criminal Code, R.S.C., 1985, c. C-46, s. 761 (as am. by S.C. 1992, c. 20, s. 215).

cases judicially considered

applied:

Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75; [1996] 3 W.W.R. 305; (1996), 70 B.C.A.C. 1; 45 C.R. (4th) 265; 115 W.A.C. 1; Cunningham v. Canada, [1993] 2 S.C.R. 143; (1993), 11 Admin. L.R. (2d) 1; 80 C.C.C. (3d) 492; 20 C.R. (4th) 57; 14 C.R.R. (2d) 234; 151 N.R. 161; 62 O.A.C. 243; R. v. Vermette, [1988] 1 S.C.R. 985; (1988), 41 C.C.C. (3d) 523; 64 C.R. (3d) 82; 84 N.R. 296; 14 Q.A.C. 161.

considered:

R. v. Lyons, [1987] 2 S.C.R. 309; (1987), 44 D.L.R. (4th) 193; 37 C.C.C. (3d) 1; 61 C.R. (3d) 1; 80 N.R. 161.

referred to:

Solosky v. The Queen, [1980] 1 S.C.R. 821; (1979), 105 D.L.R. (3d) 745; 50 C.C.C. (2d) 495; 16 C.R. (3d) 294; 30 N.R. 380; Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; (1987), 41 D.L.R. (4th) 429; 24 Admin. L.R. 91; 74 N.R. 33; County of Strathcona No. 20 and Chemcell Ltd. v. Maclab Enterprises Ltd., Provincial Planning Board and City of Edmonton, [1991] 3 W.W.R. 461 (Alta. C.A.).

APPEAL from trial judgment (MacInnis v. Canada (Attorney General), [1995] 2 F.C. 215; (1995), 37 C.R. (4th) 152; 27 C.R.R. (2d) 363; 92 F.T.R. 88 (T.D.)) holding that the National Parole Board's procedures during its biennial review of the respondent's indeterminate sentence deprived him of his right to liberty under Charter, section 7 in violation of the principles of fundamental justice. Appeal allowed.

counsel:

John B. Edmond for appellants (respondents).

Ronald R. Price, Q.C. for respondent (applicant).

solicitors:

Deputy Attorney General of Canada for appellants (respondents).

Ronald R. Price, Q.C., Kingston, Ontario, for respondent (applicant).

The following are the reasons for judgment rendered in English by

McDonald J.A.: This is an appeal from a decision of the Trial Division dated February 15, 1995 [[1995] 2 F.C. 215]. The Judge found that the procedures employed by the National Parole Board (the Board) during its biennial review of the respondent's indeterminate sentence deprived him of his right to liberty under section 7 of the Canadian Charter of Rights and Freedoms¹ in violation of the principles of fundamental justice.

Background

Following his second conviction for rape, the respondent was declared a dangerous offender under what was then Part XXI of the Criminal Code.² He was sentenced to an indeterminate period of incarceration, most of which he has served at the Kingston Penitentiary. As an offender serving an indeterminate sentence, the respondent is entitled to a biennial review of his "condition, history and circumstances" under what is now subsection 761(1) of the Criminal Code .³ That section reads as follows:

761. (1) Subject to subsection (2), where a person is in custody under a sentence of detention in a penitentiary for an indeterminate period, the National Parole Board shall, forthwith after the expiration of three years from the day on which that person was taken into custody and not later than every two years thereafter, review the condition, history and circumstances of that person for the purpose of determining whether he should be granted parole under Part II of the Corrections and Conditional Release Act and, if so, on what conditions.

During one such review on November 22, 1991, the respondent expressed his concerns with the procedures employed by the Board. The Board rejected the respondent's arguments and denied him temporary absence, day parole or full parole. The respondent came before the Board again on July 8, 1993 and requested the following:

(1) the right to appear by counsel before the Board;

(2) the right to cross-examine the authors of certain clinical reports before the Board;

(3) in the alternative, the right to have certain reports to which he objected excluded from evidence.

The Board again ruled against the respondent. The Board followed a previous decision concerning the respondent, dated July 30, 1990, and rejected his request for counsel. The Board stated that it was not its practice to allow cross-examination, and that it was within its jurisdiction to review all relevant information. The hearing was adjourned sine die while the respondent made an application to the Trial Division for declaratory relief. In a decision dated February 15, 1995, the Trial Division agreed that the respondent was deprived of his right to liberty in violation of section 7 of the Charter and allowed his application. This decision is the subject of the present appeal.

Decision under appeal

The Judge identified the two issues before the Court to be whether the respondent's liberty was in issue, and if so, whether any deprivation of his liberty which may have occurred was in keeping with the principles of fundamental justice. He allowed the respondent's application for judicial review, and found that the principles of fundamental justice required that an inmate serving an indeterminate sentence be granted both the right to appear before the Board by counsel and the right to examine the authors of clinical reports in evidence.

The Judge found that the Board followed the procedures contained in its governing statute. He found that pursuant to R. v. Lyons,⁴ a deprivation of a liberty interest within the meaning of section 7 existed. The Judge then addressed whether "fundamental justice" required the procedures requested by the respondent, emphasizing his status as a dangerous offender.

The respondent sought an enhanced role for his counsel, Mr. Price, one beyond the strictures established by subsection 140(8) of the Corrections and Conditional Release Act (CCRA).⁵ This included the right to examine the authors of clinical reports before the Board concerning the respondent. The Judge noted that there were differing opinions about the respondent's condition. He concluded that examination of the authors would allow the Board to make a more informed decision.

The Judge found that hearings before the Board had to reflect the differences associated with serving an indeterminate sentence, as a person serving such a sentence has no prospect of release other than by parole. He did not feel that the legislation would be violated by the Board taking account of such differences. The Board could, in his opinion, adopt procedures consistent with the requirements of section 7 of the Charter for inmates like the respondent, without doing damage to the CCRA. He emphasized that he was not granting the full menu of procedural rights associated with a trial. However he felt that the offender's counsel could be useful to the Board, helping to ensure that procedures were fair and that relevant information was not overlooked. He did not believe his findings necessarily implied that Board proceedings would become more adversarial in nature, as such would be inconsistent with the Board's statutory mandate.

The Judge held that the Board could consider its previous decisions regarding the respondent. Paragraph 101(b) of the CCRA requires the Board to consider all relevant evidence.

The Judge found that sections 9 and 15 of the Charter did not need to be addressed given his finding regarding section 7.

Issues

1. Did the Judge err in finding that the respondent was deprived of his liberty by the impugned rulings of the Board?

2. Did the Judge err in finding that the Board's procedures were inconsistent with the principles of fundamental justice?

3. Did the order have the effect of striking down, as a Charter violation, for indeterminately sentenced offenders, the statutory restriction on the role of "assistant" to such offenders at a Board hearing, while purporting only to correct alleged procedural errors of the Board?

Analysis

In my opinion, the appeal must be allowed. It must first be emphasized that the Board made no palpable error in its interpretation and implementation of its governing legislation which entitled it to conduct the hearing as it did. The respondent requested procedures beyond those established in the CCRA, specifically, an enhanced right to cross-examination and an increased role for his assistant. The CCRA provides a limited right to counsel for offenders appearing before the Board. Subsection 140(7) gives the offender the right to be "assisted" by the individual of his choice when he appears before the Board:

140. . . .

(7) Where a review by the Board includes a hearing at which the offender is present, the Board shall permit the offender to be assisted by a person of the offender's choice unless the Board would not permit the presence of that person as an observer pursuant to subsection (4).

Subsection 140(8) places limits on the role the assistant can play during the parole hearing:

140. . . .

(8) A person referred to in subsection (7) is entitled

(a) to be present at the hearing at all times when the offender is present;

(b) to advise the offender throughout the hearing; and

(c) to address, on behalf of the offender, the members of the Board conducting the hearing at times they adjudge to be conducive to the effective conduct of the hearing.

While the legislation does not specifically preclude cross-examination, it leaves the matter to the discretion of the Board. The parameters of the assistant's role are clearly delineated. One can assume from the relevant provisions and the terminology employed, that Parliament did not intend for the assistant's role before the Board to be the equivalent of counsel's role before a judge or jury. As will be discussed further, different procedures are applicable to administrative proceedings. I agree with the Judge's finding that the Board correctly interpreted its governing statute and followed its procedures accordingly. The respondent was permitted to have Mr. Price, a barrister, serve as his assistant. He was allowed to question any clinical reports before the Board by means of written interrogatories. These findings by the Board were in keeping with its statutory mandate and powers.

There was no question of constitutionality for the Board to consider. However, the constitutionality of the Board's interpretation of its statute and procedural rulings was the basis of the Judge's decision on the application before him.

The Court is not precluded from dealing with anticipated breaches of the Charter. In R. v. Vermette,⁶ La Forest J. found that subsection 24(1) remedies may be available where an applicant can establish the threat of a future violation of a protected right. Given that the relief sought in the case at bar was a declaration,⁷ which was granted by the Judge below without mention of the issue of ripeness, I will proceed to address the merits of the appeal.

Section 7 of 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.

The initial issue addressed by the Judge was whether the respondent's right to liberty was in issue when he appeared before the Board. With the recent decision of the Supreme Court of Canada in Mooring v. Canada (National Parole Board)⁸ it is now settled law that section 7 is engaged in hearings before the National Parole Board. As Sopinka J. states:

As a statutory tribunal, the Board is also subject to the dictates of s. 7 of the Charter. In this regard, it must comply with the principles of fundamental justice in respect of the conduct of its proceedings.⁹

The right to liberty is not absolute. Section 7 recognizes the competing social interests involved by ensuring that an individual can be deprived of his or her liberty in accordance with the principles of fundamental justice.¹⁰ The question in the case at bar is whether fundamental justice requires the procedures requested by the respondent. In my opinion it does not.

What exactly the "principles of fundamental justice" are has been the subject of much discussion since the advent of the Charter. In the administrative context it has generally been agreed that it encompasses, at a minimum, procedural fairness, although the precise content of "fairness" may vary with the circumstances. The procedures employed by the Board must ensure that the offender is treated fairly. The respondent believes that additional procedures beyond those provided in the CCRA are necessary in order for him to receive a fair hearing. These procedures, an increased role for counsel and the right to cross-examination of witnesses, are concepts identifiable with the adversarial process. While these elements may be integral to ensuring fairness in a criminal proceeding, they are not always required before administrative tribunals:

While the principles of fundamental justice are not limited to procedural justice, it does not follow that a tribunal that applies the rules of fairness and natural justice does not comply with s. 7. If the myriad of statutory tribunals that have traditionally been obliged to accord nothing more than procedural fairness were obliged to comply with the full gamut of principles of fundamental justice, the administrative landscape in the country would undergo a fundamental change.¹¹

Whether or not an inmate should be granted parole is a decision to be made by the Board in keeping with the provisions of the CCRA. The parole system is unique and separate from the courts and different considerations apply. The importance of the context in which the hearing takes place was emphasized by Sopinka J. in Mooring:

It is a basic tenet of our legal system that the rules of natural justice and procedural fairness are adjusted by reference to the context in which they are administered. This is one of the basic tenets of our legal system to which Lamer J. referred in Re B.C. Motor Vehicle Act as the source of the principles of fundamental justice. In my opinion, adherence by the Board to the practice and procedures outlined above constitutes full compliance with the principles of fundamental justice and therefore, with s. 7 of the Charter.¹² [Emphasis added.]

In addition to the common law rules of natural justice and fairness, the "practice and procedures" referred to and affirmed by Sopinka J. are those established by the CCRA. These include the paragraph 4(g ) requirement that correctional decisions be made in a forthright and fair manner, with access by the offender to an effective grievance procedure; the paragraph 101(f) requirement that the conditional release process be fair and understandable; and the paragraph 101(a) requirement that the protection of society be the paramount consideration in the determination of any case before the Board.

The Court in Mooring also emphasized that Board hearings are different from judicial proceedings. The Parole Board does not act in either a judicial or a quasi-judicial capacity. Its members may have no legal training. Although counsel is present at the hearing, it is an inquisitorial not an adversarial process. The state's interests are not represented by counsel. The traditional rules of evidence do not apply. The Board does not have the power to issue subpœnas and evidence is not given under oath. The introduction of the adversarial elements the respondent desires do not fit into this model. If the prisoner has the right to cross-examine, the next logical step would be to give the state the right to counsel and to cross-examine witnesses also. The use of cross-examination techniques and enhanced roles for counsel would inevitably lead to an increasingly formal process, one which a "lay bench" would have difficulty presiding over. The Board would have to be given the power to subpœna. On a practical point, the increased cost of requiring the authors of clinical reports to be available for cross- examination would be an enormous strain to introduce on an already cash strapped system. The respondent argues that such requirements would only be granted to offenders serving indeterminate sentences. I have difficulty imagining how such a distinction could be maintained. If the right to cross- examine and the power of subpœna is made available to one category of offender, it would inevitably have to be granted to all.

I do not agree with the respondent's contention that the Board's procedural rulings fail to address the differences associated with serving an indeterminate sentence. The respondent relies extensively on the following obiter statements of La Forest J. in Lyons:

Furthermore, it is clear from my earlier comments that the fairness of the process by which the deprivation of liberty is occasioned cannot, in the case of a dangerous offender, be considered in isolation from the process by which that deprivation of liberty is reviewed. Given the severity of the impact of such review on a dangerous offender's liberty interests, at least as opposed to those of an "ordinary" offender, it seems to me that considerations of fundamental justice might require correspondingly enhanced procedural protections at such a review. In this regard, I note that the Ouimet Commission recommended that dangerous offenders be given a right to judicial review of their status every three years, with the court having the power to release the offender (Report of the Canadian Committee on Corrections (1969), at pp. 262-63). I agree that this would afford the convict greater safeguards, but I do not view it to be constitutionally required. Indeed, as was pointed out by the court in both Moore [(1984), 10 C.C.C. (3d) 306 (Ont. H.C.)] and Langevin [(1984), 11 C.C.C. (3d) 336 (Ont. C.A.)], . . . the Parole Board is supposedly more expert in determining whether release is warranted, and its decisions are subject to judicial review, including review on Charter grounds. However, the fairness of certain procedural aspects of a parole hearing may well be the subject of constitutional challenge, at least when the review is of the continued incarceration of a dangerous offender. The fairness of the review procedure, however, is not an issue in the present case.¹³

I am unable to read as much into these statements as counsel for the respondent advocates. La Forest J. suggests that "enhanced procedural protections" might be required, and speculates that the fairness of "certain procedural aspects" of review hearings for dangerous offenders may be the subject of a future constitutional challenge. He does not identify either the "procedural aspects" referred to, nor does he suggest what "enhanced procedural protections" might be required.

One would assume that Parliament realized that Parole Board hearings have an increased significance for those serving indeterminate sentences. Subsection 761(1) of the Criminal Code stipulates that the respondent's "condition, history and circumstances" are to be reviewed every two years by the Board. The section does not provide for a new trial or some form of judicial review every two years. The composition and mandate of the Board reflect its primary purpose, the protection of society. Absent a decision by Parliament that a dangerous offender should be reevaluated by a trial judge in a judicial proceeding, I am not prepared to create a hybrid process to meet the respondent's perceived needs.

The procedures advocated by the Board allow the respondent to make his argument for parole fully and are in keeping with the rules of fairness. Indeed the procedures requested by the respondent would do little in my opinion to enhance the procedural fairness of his parole hearing. He is entitled to the help of an assistant during the review process. The reports concerning the respondent were provided ahead of time and he was given ample opportunity to submit a written response. Given that the respondent had an ample opportunity to challenge these reports, cross-examination of the authors was not necessary to ensure fairness.¹⁴

The Boards' procedural rulings sufficiently address the dual requirements of ensuring that society is protected and the respondent has a fair hearing. The respondent must be reminded that his freedom is not the paramount issue before the Board. The Board must first and foremost protect the Canadian public. Dangerous offenders are not so designated lightly. The proceedings under which the respondent was declared a dangerous offender and sentenced to an indeterminate period of incarceration are among the most serious undertaken in Canadian court rooms. The respondent was found to be a great danger to Canadian society, so much so that his indeterminate incarceration was felt to be necessary. As such, all Canadians have a vital stake in ensuring that the Board comes to a fully informed and appropriate decision. It is in the best interests of all concerned that the procedure be fair, and in my opinion the administrative process currently in place meets that requirement. The introduction of piecemeal elements of the adversarial system would do little to increase the fairness of the respondent's hearing, but much to damage the fundamental nature of Board hearings. Accordingly, I find that the Board's refusal to grant the enhanced procedures requested by the respondent did not violate his right to liberty under section 7 of the Charter.

Although it was no longer an issue before us, I agree with the Judge's finding that paragraph 101(b) of the CCRA requires the Board to hear all relevant evidence. This is in keeping with the decision of the Supreme Court of Canada in Mooring.

Given my conclusions concerning the Charter issues, I do not believe it necessary to deal with the third issue raised by the appellants (see page 122 of these reasons).

The appeal is allowed.

Strayer J.A.: I concur.

MacGuigan J.A.: I concur.

¹ Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

² R.S.C. 1970, c. C-34.

³ R.S.C., 1985, c. C-46 (as am. by S.C. 1992, c. 20, s. 215).

⁴ [1987] 2 S.C.R. 309.

⁵ S.C. 1992, c. 20.

⁶ [1988] 1 S.C.R. 985.

⁷ See Solosky v. The Queen, [1980] 1 S.C.R. 821.

⁸ [1996] 1 S.C.R. 75. It should be noted that Mooring was delivered after the decision of the Judge in this case.

⁹ Ibid., at p. 97.

¹⁰ As stated by McLachlin J. in Cunningham v. Canada, [1993] 2 S.C.R. 143, at pp. 151-152:

The principles of fundamental justice are concerned not only with the interest of the person who claims his liberty has been limited, but also with the protection of society. Fundamental justice requires that a fair balance be struck between these interests, both substantively and procedurally. . . .

¹¹ Supra, note 8, at pp. 97-98.

¹² Supra, note 8, at p. 98.

¹³ Supra, note 4, at pp. 362-363.

¹⁴ See Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181; and County of Strathcona No. 20 and Chemcell Ltd. v. Maclab Enterprises Ltd., Provincial Planning Board and City of Edmonton, [1971] 3 W.W.R. 461 (Alta. C.A.).