[1995] 2 F.C. 215
T-1931-93
James Ralph MacInnis (Applicant)
v.
Attorney General of Canada and National Parole Board (Respondents)
Indexed as: MacInnis v. Canada (Attorney General) (T.D.)
Trial Division, Wetston J.—Ottawa, November 1, 1994 and February 15, 1995.
Constitutional law — Charter of Rights — Life, liberty and security — Judicial review of National Parole Board’s refusal to allow dangerous offender serving indeterminate sentence to be represented by counsel, examine authors of clinical reports at parole hearing — Deprivation of liberty interest involved — Fundamental justice under Charter, s. 7 requiring fairness, mandating right to both procedures requested.
Parole — Judicial review of N.P.B.’s refusal to allow dangerous offender serving indeterminate sentence to be represented by counsel, examine authors of conflicting clinical reports at parole hearing — Charter, s. 7 mandating right to counsel, examination of authors of reports — Protection of society Board’s paramount consideration — Counsel, examination of authors of reports assisting Board, inmate by ensuring important facts not overlooked, Board not adopting unfair procedures — While Parliament not having legislated alternative procedures for dangerous offenders, S.C.C. having recognized difference in situation of convicts serving determinate, indeterminate sentences — Previous decision relevant, may be considered under Parole Act, s. 101(b).
This was an application for judicial review of the National Parole Board’s refusal to allow the applicant, a dangerous offender serving an indeterminate sentence, to appear by counsel and to examine the authors of conflicting clinical reports at his 1993 parole hearing. The Board followed the procedures contained in the Parole Act, which does not distinguish between offenders serving determinate or indeterminate sentences. Counsel’s role is restricted to that of assistant.
The applicant argued that denial of the procedures requested infringed his Charter, section 7 right to fundamental justice. The respondents submitted that there was no loss of liberty because release from incarceration would be an enhancement, not a deprivation of the applicant’s liberty and therefore Charter, section 7 was not engaged.
The issues were whether the Board infringed the applicant’s Charter, section 7 rights; whether there was a deprivation of a liberty interest; and if so, whether the deprivation was in accordance with the principles of fundamental justice.
Held, the application should be allowed.
A deprivation of a liberty interest does exist within the meaning of Charter, section 7 in the context of an indeterminate sentence.
Fairness under Charter section 7 must be fundamental to justice. With respect to this inmate, serving an indeterminate sentence, the principles of fundamental justice mandated both the right to appear by counsel and the right to examine the authors of the clinical reports.
The Board’s paramount consideration in the determination of parole is the protection of society. The Board is not restricted by the rules of evidence or procedure. Psychiatric and psychological reports are important components of the evidence weighed by the Board. While examination of the experts would increase the administrative burden on the Board, it would likely result in a more informed decision. Parliament has not legislated alternative procedures for dangerous offenders, despite recognition by the Supreme Court that, from the perspective of the deprivation of liberty, there is a difference between inmates serving determinate and indeterminate sentences. Hearings before the Board must reflect the differences associated with such status. Given the liberty issues at stake, when reviewing the status of a dangerous offender, counsel can be of assistance to the Board as well as to the inmate, in ensuring that important factual matters are not overlooked or that the Board does not adopt procedures which are basically unfair to the inmate. Counsel can assist the Board in making a more informed decision regarding parole. The same is true of the right to examine the experts on their reports. The hearing need not become adversarial or trial-like as this would be inconsistent with the manner in which the Board views its statutory mandate.
Paragraph 101(b) of the Act requires that the Board consider all relevant information. A previous decision regarding the same individual is relevant given the Board’s responsibilities under the Act and may be considered.
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, 12, 15.
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 100, 101, 102, 105(1),(5), 140(7),(8), 151.
Criminal Code, R.S.C., 1985, c. C-46, s. 761 (as am. by S.C. 1992, c. 20, s. 215).
Parole Act, R.S.C., 1985, c. P-2.
CASES JUDICIALLY CONSIDERED
APPLIED:
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; R. v. S. (R.J.), [1995] S.C.J. No. 10.
CONSIDERED:
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; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; [1990] 6 W.W.R. 673; (1990), 51 B.C.L.R. (2d) 1; 60 C.C.C. (3d) 1; 80 C.R. (3d) 257; 2 C.R.R. (2d) 304; 121 N.R. 198; Howard v. Stony Mountain Institution, [1984] 2 F.C. 642 (1985), 19 D.L.R. (4th) 502; 11 Admin. L.R. 63; 19 C.C.C. (3d) 195; 45 C.R. (3d) 242; 17 C.R.R. 5; 57 N.R. 280 (C.A.); Latham v. Solicitor General of Canada, [1984] 2 F.C. 734 (1984), 9 D.L.R. (4th) 393; 5 Admin. L.R. 70; 12 C.C.C. (3d) 9; 39 C.R. (3d) 78 (T.D.).
REFERRED TO:
Dempsey v. The Queen (1987), 34 C.C.C. (3d) 95; 30 C.R.R. 191; 80 N.R. 159 (F.C.A.); Hay v. National Parole Board et al. (1991), 48 F.T.R. 165 (F.C.T.D.); MacDonald v. National Parole Board, [1986] 3 F.C. 157 (1986), 18 Admin. L.R. 284; 2 F.T.R. 273 (T.D.).
APPLICATION for judicial review of the National Parole Board’s refusal to allow a dangerous offender serving an indeterminate sentence to appear by counsel and to examine the authors of conflicting clinical reports at a parole hearing. Application allowed.
COUNSEL:
Ronald R. Price, Q.C., for applicant.
John B. Edmond for respondents.
SOLICITORS:
Faculty of Law, Queen’s University, Kingston, Ontario, for applicant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for order rendered in English by
Wetston J.: This is an application seeking declaratory relief regarding certain procedural rulings made by the National Parole Board (the Board) at the applicant’s July 8, 1993, parole hearing. The hearing was adjourned sine die at the request of the applicant following the rulings by the Board.
The applicant raises a number of issues in his originating notice of motion. However, the main issues are whether the National Parole Board infringed the applicant’s section 7 Charter [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]] rights by denying him: (1) the right to appear by counsel; (2) the right to have the authors of certain clinical reports appear before the Board for the purposes of examination; and (3) the right to have certain reports to which he objects excluded from the evidence.
The applicant is currently an inmate, sentenced to an indeterminate period of detention under Part XXIV (Dangerous Offenders) of the Criminal Code [R.S.C., 1985, c. C-46]. He was found to be a dangerous offender in 1980 and sentenced to an indeterminate period of detention. In November 22, 1991, the applicant had a parole hearing before the Board in which similar objections by applicant’s counsel were made. In the context of that hearing, the Board denied the applicant unescorted temporary absence, day parole or full parole. The next hearing of the applicant’s case by the Board was held July 8, 1993, which is the subject of this proceeding.
The dangerous offenders legislation has been in operation in Canada since 1977. The consent of the Attorney General of the province in which the offender is tried is required to hear an application for dangerous offender status. On December 17, 1992, there were approximately 111 dangerous offenders currently under federal jurisdiction that comprised less than .5% of the total federal offender population. At that time there were four dangerous offenders on conditional release. Interestingly, from 1985 to 1992, the number of annual releases of dangerous offenders has remained constant at about one per year.
RELEVANT STATUTORY FRAMEWORK
Subsection 761(1) [as am. by S.C. 1992, c. 20, s. 215] of the Criminal Code provides 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.
Parole, that is, conditional release and detention, is dealt with under Part II of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the Act) (formerly the Parole Act [R.S.C., 1985, c. P-2]). Part II of the Act does not distinguish between offenders serving a determinate sentence and those offenders imprisoned under an indeterminate sentence. Both counsel agreed that an indeterminate sentence is a sentence within the meaning of Part II of the Act. The purpose of conditional release, as well as the principles guiding Parole Board decisions and the criteria for granting parole are contained in sections 100, 101, and 102 of the Act. It is clear that the National Parole Board has the exclusive jurisdiction and discretion to grant parole to an offender including a dangerous offender. Counsel for the respondents characterizes the functions of the National Parole Board variously as administrative, non-judicial or inquisitorial. He argues that the Board is non-expert. The respondents contend that this is reflected in subsection 105(1) of the Act which reads:
105. (1) Members appointed to the Board shall be sufficiently diverse in their backgrounds to be able to collectively represent community values and views in the work of the Board and to inform the community with respect to unescorted temporary absence, parole and statutory release.
Furthermore, in exercising its functions, the Board must have regard to subsection 105(5), which provides that members of the Board shall exercise their functions in accordance with policies adopted pursuant to subsection 151(2) of the Act.
Pursuant to section 151, the Board maintains a Policy Manual regarding conditional release and detention which is approved by the Executive Committee of the National Parole Board. The Manual discusses, among other things, the procedures associated with the application of subsections 140(7) and 140(8) of the Act. These subsections read as follows:
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).
(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.
The practice of the Board is normally that the only persons permitted to participate at a hearing, apart from panel members, are Correctional Service of Canada personnel, usually the case manager officer involved, who presents the documents on file and the recommendation of the Correctional Service, the inmate and the assistant. The role of the assistant is set out in subsection 140(8) of the Act. Normally, concerns of the offender respecting reports and documents on file, are addressed by him or his assistant by way of written submissions in advance of the hearing or by oral submissions at the hearing. Questions submitted by the offender in advance concerning statements and reports are brought to the attention of the report’s author and a response is provided in advance to the offender. Moreover, these responses may be the subject of submissions by the offender or his assistant to the panel. Attendance at a Board hearing of the author of a clinical report relating to an inmate, whose case is being heard, is unusual. At the 1991 hearing, one of the psychiatrists who was in support of release was permitted to attend and answer questions at the parole hearing of Mr. MacInnis.
PARTIES’ SUBMISSIONS
Counsel for the applicant noted during argument that he agrees that the Act was fully complied with by the Board. He does not argue that the Board adopted procedures that were unfair from the perspective of the procedures under the Act or in the policies contained in the Manual. He contends that the Act, which affects the liberty interests of the applicant, must be interpreted in terms of its Charter implications and that this was not done by the Board. The applicant does not argue that the provisions of the Act are unconstitutional. Nor does the applicant base his claim on the fact that the interest at stake is the right to be paroled, or on an existing right to be released or even on an unqualified right of release in the future. The applicant argues that to deny him the procedures requested infringes his right to fundamental justice under section 7 of the Charter.
The respondents take the position that it is not open to the applicant on judicial review to impugn a statutory provision, that is, this proceeding is limited to the review by the Court of the Board’s procedural decisions. It is contended that the decisions challenged are compelled by statute, that the issue is one of fairness, and there can be no unfairness because the Act was fully complied with. Since the Act applies in the case of the parole review of a person under an indeterminate sentence, it is contended by the respondents that the Act cannot be challenged, only the decisions giving rise to this application. The respondents submit that Parliament, by the express language of subsections 140(7) and (8), intended to exclude the broader role of counsel; expressio unius est exclusio alterius. The respondents further contend that the assistance role is expressly qualified and by taking issue with the provisions of the Act limiting the role of an assistant the statute is being impugned and not the decision of the Board.
With respect to the application of section 7, the respondents argue that there is no loss of liberty in this case and, therefore, section 7 is not engaged. The respondents argue that the jurisprudence draws a distinction between the deprivation of a currently existing right of liberty and a denial of an anticipated privilege of liberty. It is contended that the case at bar concerns the latter: Dempsey v. The Queen (1987), 34 C.C.C. (3d) 95 (F.C.A.), at page 96; Hay v. National Parole Board et al. (1991), 48 F.T.R. 165 (F.C.T.D.), at page 169; and MacDonald v. National Parole Board, [1986] 3 F.C. 157(T.D.), at page 174.
RELEVANT CASE LAW
The dangerous offender provisions of the Criminal Code were considered in the context of section 12 of the Charter by the Supreme Court of Canada in R. v. Lyons, [1987] 2 S.C.R. 309, where Mr. Justice La Forest noted the following at pages 340-341:
In truth, there is a significant difference between the effect of a Part XXI sentence and other, more typical, sentences. When a person is imprisoned for an absolute and determinate period, there is at least the certainty that the incarceration will end at the termination of that period. The convicted person, during the term of sentence, can remain in a passive state, secure in the knowledge that he or she will be released thereafter. For the offender undergoing an indeterminate sentence, however, the sole hope of release is parole ….
This is so because in the context of a determinate sentencing scheme the availability of parole represents an additional, superadded protection of the liberty interests of the offender. In the present context, however, it is, subsequent to the actual imposition of the sentence itself, the sole protection of the dangerous offender’s liberty interests …. Seen in this light, therefore, the parole process assumes the utmost significance for it is that process alone that is capable of truly accommodating and tailoring the sentence to fit the circumstances of the individual offender.
It is clear from the decision in R. v. Lyons, supra, that the dangerous offender provisions of the Criminal Code, are saved under a section 12 Charter challenge by the parole process. At page 345 of R. v. Lyons, supra, Mr. Justice La Forest notes:
Before leaving this issue, however, I would make one further comment. The conclusion that the liberty interest of a dangerous offender that is at stake in any parole hearing is, as a practical matter, different from that of “ordinary” offenders serving determinate sentences might affect the way in which the procedural adequacy of the review procedure might be viewed.
Mr. Justice La Forest further notes, at page 354, that:
In the context of s. 7, it seems to me that the nature and quality of the procedural protections to be accorded the individual cannot depend on sterile logic or formalistic classifications of the type of proceeding in issue. Rather, the focus must be on the functional nature of the proceeding and on its potential impact on the liberty of the individual.
and, at page 361, that:
… the requirements of fundamental justice embrace the requirements of procedural fairness …. [and] that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked.
While the applicant is entitled to a fair hearing, he is not entitled to the most favourable procedures that could possibly be imagined, but, the Supreme Court notes, at page 362, 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.
And, that [at pages 362-363]:
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 …. 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.
Of course, the fairness of the review procedure, is at issue in this case. Mr. Justice La Forest also in R. v. Lyons, supra, noted, at page 368, that the problem of dealing with psychiatric expert evidence in the context of the parole review of a dangerous offender does not undermine fairness of the scheme so much as to strengthen the conclusion that the procedural protection accorded the offender, especially on review, ought to be very rigorous.
In Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, the Court had another occasion to deal with the dangerous offender provisions and once more concluded that the imposition of an indeterminate sentence without other safeguards would violate section 12 of the Charter if it were not for the existence of regular parole review of an offender’s continuing detention. In other words, it is only by a careful consideration and application of the various criteria under the parole laws that the indeterminate sentence can be made to fit the circumstances of the individual offender.
In Howard v. Stony Mountain Institution, [1984] 2 F.C. 642(C.A.), the Court had an opportunity to deal with the right to counsel in the context of an inmate disciplinary hearing. At pages 662-663, Thurlow C.J., notes:
I am of the opinion that the enactment of section 7 has not created any absolute right to counsel in all such proceedings. It is undoubtedly of the greatest importance to a person whose life, liberty or security of the person are at stake to have the opportunity to present his case as fully and adequately as possible. The advantages of having the assistance of counsel for that purpose are not in doubt. But what is required is an opportunity to present the case adequately and I do not think it can be affirmed that in no case can such an opportunity be afforded without also as part of it affording the right to representation by counsel at the hearing.
Once that position is reached it appears to me that whether or not the person has a right to representation by counsel will depend on the circumstances of the particular case, its nature, its gravity, its complexity, the capacity of the inmate himself to understand the case and present his defence. The list is not exhaustive. And from this, it seems to me, it follows that whether or not an inmate’s request for representation by counsel can lawfully be refused is not properly referred to as a matter of discretion but is a matter of right where the circumstances are such that the opportunity to present the case adequately calls for representation by counsel.
Mr. Justice MacGuigan, in Howard, supra, at page 685, notes as follows:
What section 7 requires is that an inmate be allowed counsel when to deny his request would infringe his right to fundamental justice. The existence of the right admittedly depends on the facts. But the right, when it exists, is not discretionary, in the sense that the presiding officer has a discretion to disallow it. The presiding officer’s authority cannot, in my view, prevent a reviewing court from looking at the facts and substituting its own view if it is persuaded by them that the case is one in which counsel should be allowed in order to afford the inmate the rights guaranteed by section 7.
At page 687, Mr. Justice MacGuigan continues:
The Charter does modify the previous understanding of the law by an enhancement of the fundamental principle of justice relating to an adequate opportunity to answer, and in doing so it does affect even purely administrative proceedings.
Finally, in Latham v. Solicitor General of Canada, [1984] 2 F.C. 734(T.D.), Mr. Justice Strayer, as he then was, notes, at page 747, that:
In my view fundamental justice requires procedural fairness commensurate with the interest affected.
He continues, at page 749:
In my view, however, the guarantee in section 7 of the Charter requires that a parolee should have every reasonable opportunity to be represented by counsel at a revocation hearing. The importance of the outcome to him, at least in a case like the present, means that a fair procedure requires that he should have counsel if he so wishes and if he can find counsel willing to serve. Sufficient time should be assured to him to make all reasonable efforts to achieve this.
…
This does not mean, however, that the Board can remain indifferent to whether a parolee has counsel in such circumstances. It must provide a hearing procedure which is fair, and the presence of counsel in a matter of this gravity will be an important factor in assuring the fairness of the process.
It is clear from the review of the authorities that where a revocation of parole occurs or where disciplinary proceedings are involved, the right to counsel is an important component of the guarantee of fundamental justice within section 7 of the Charter. Of course, the matter before the Court is not one involving discipline or revocation of parole, but rather the anticipated opportunity for parole within the context of an indeterminate sentence.
In a recent decision in the Supreme Court of Canada, R. v. S. (R.J.), [1995] S.C.J. No. 10, February 2, 1995, a case dealing with various sections of the Charter as it applies to the principles against self-incrimination, Mr. Justice Iacobucci states the following regarding section 7 of the Charter, at page 9 of the decision:
Section 7 establishes that “[e]veryone 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”. An analysis under this provision can logically proceed in stages. First, it can be determined whether there exists a real or imminent deprivation of an interest or interests recognized in the section. Second, the relevant principles of fundamental justice can be isolated, and the deprivation can be measured against these principles to determine whether s. 7 has been infringed.
With respect to liberty interests, Mr. Justice Iacobucci, in R. v. S. (R.J.), supra, at pages 10-11, states:
Section 7 of the Charter is engaged by deprivations in respect of life, liberty, or security of the person. To date, this Court has recognized that an interest is subject to deprivation, in this context, if there is either an immediate or imminent threat to the interest, and, in this appeal, the interest at stake is liberty. For example, both imprisonment and an imminent threat of imprisonment constitute deprivations of the liberty interest: ….
Finally, at page 17 of R. v. S. (R.J.), supra, Mr. Justice Iacobucci comments with respect to the principles of fundamental justice:
The rights listed in s. 7 of the Charter are not guaranteed at large …. He can only demand that a deprivation of his liberty take place in accordance with the principles of fundamental justice.
Counsel for the respondents relies on Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, for the proposition that there is no general common law right to examine witnesses at Board hearings. Mr. Justice Iacobucci also had an occasion in the R. v. S. (R.J.), supra, decision to deal with the application of the Irvine v. Canada, supra, decision. At pages 79-80, Mr. Justice Iacobucci notes as follows:
Admittedly, in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, Estey J. stated that (at 231):
Fairness is a flexible concept and its content varies depending on the nature of the inquiry and the consequences for the individuals involved. The characteristics of the proceeding, the nature of the resulting report and its circulation to the public, and the penalties which will result when events succeeding the report are put in train will determine the extent of the right to counsel and, where counsel is authorized by statute without further directive, the role of such counsel.
I mean to cast no doubt here upon such an analysis, nor upon the related suggestion that “[i]n the pre-Nicholson era a number of authorities shifted the emphasis away from a process of classification of the tribunal in question to the effect of the statutory procedure on the individual appearing in the administrative process” (at 216).
As I understand it, however, the dichotomy between quasi-judicial and administrative proceedings can be regarded as false to the extent that one is concerned with determining which requirements of natural justice or procedural fairness should attach to proceedings. When this is the goal, instead of labelling the proceedings, it is helpful to analyze their effect upon individuals as Estey J. discussed in Irvine, supra ….
ANALYSIS
In summary, the Court must consider what the effect of the parole proceeding is on the individual since he can only demand that a deprivation of his liberty take place in accordance with the principles of fundamental justice. Moreover, the Court must also consider what principles of fundamental justice are operative in this case. The issue before the Court is not whether parole should or should not be granted; the issue before the Court is whether there is a deprivation of a liberty interest and, if so, whether the deprivation is in accordance with the principles of fundamental justice. As Madam Justice L’Heureux-Dubé noted, at page 45 of R. v. S. (R.J.), supra, “[f]airness that is fundamental to justice represents our constitutional bottom line.” In other words, this case is about fundamental justice in the context of an indeterminate sentence.
It appears that the Board followed the procedures contained in the Act. Indeed, with respect to the right of examination of the clinical experts, the respondents argue that an alternative procedure was provided that exceeded the minimum requirements. As indicated previously, the respondents also note that there is no general common law right to examine witnesses at Board hearings: Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181, at page 231. Moreover, the respondents submit that the denial of the right to examination violates no Charter rights as release from incarceration is an enhancement, not a deprivation of the measure of liberty the applicant has a right to enjoy.
The Court, however, is of the opinion that despite the characterization by the respondents a deprivation of a liberty interest does exist within the meaning of section 7 of the Charter: R. v. Lyons, supra, at page 362; R. v. S. (R.J.), supra, at pages 10-11 [of Iacobucci J.’s reasons]. In the context of an indeterminate sentence it cannot be otherwise. Therefore, the question that the Court now must consider regarding both the right to counsel as well as the right to examine the authors of the clinical reports, is whether the Charter mandates the additional requirements of fairness, as a principle of fundamental justice, which are requested by the applicant. If the applicant is right, it is clear that he can only do so because he is serving an indeterminate sentence pursuant to Part XXIV of the Criminal Code. It is also clear that the Charter does not require a trial-like or adversarial type of hearing even where an indeterminate sentence is under review. Indeed, the Parole Board is not the adversary of the inmate in any way whatsoever.
The respondents describe the role of the Board as inquisitorial, among other things, but not as adversarial. Section 100 of the Act describes the purpose of conditional release as being designed to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law abiding citizens. It is also clear from section 101 of the Act that the Board must consider the protection of society to be the paramount consideration in the determination of parole.
Obviously, a decision by the Board as to whether or not the rehabilitation of a prisoner and the interest of society generally would be best served by the discontinuance of imprisonment is difficult. Clearly, the Board in making such decisions is not restricted by the rules of evidence or procedure which are more or less designed for determining difficult legal or trial-like issues. No doubt many non-legal factors must be considered by the Board in rendering a decision. These include the inmate’s clinical reports, his moral attitude, his behaviour in prison, his emotional and physical condition, and his inter-personal relationships with inmates and prison staff. Of course, there are other issues which must be considered but it is obvious that not all of them are strictly legal or factual in the traditional sense. For an applicant who is in jail on an indeterminate sentence, the stakes in a parole hearing could not be higher. He has an obvious concern in assuring that his case is at least presented as fully and effectively as possible.
The applicant is seeking an enhanced role by counsel at the hearing rather than the limited role of an assistant as provided in subsection 140(8) of the Act. Moreover, the applicant seeks the right to examine the authors of those reports that were provided to the Board. These are clinical reports regarding the condition of the applicant. It is clear from the record that while the Board noted that the presence or absence of psychological or psychiatric concerns is only one of the many factors used in determining whether the Board should grant parole, the Board did note that, with respect to the 1991 hearing, in the applicant’s case “all that can be certain is that there is no certainty.” In other words, there was a difference of opinion among the expert opinions regarding the condition of the applicant.
It is apparent that psychiatric and psychological reports are important components of the evidence weighed by the Board. In this case, there are conflicting reports describing the condition of the applicant. Should the Board have the benefit of the examination of these experts in order to assess the basis for their clinical opinions? While this would increase the administrative burden on the Board, it would likely, in the Court’s opinion, result in a more informed decision. An informed decision does not mean that the decision will be positive or negative, it will simply mean that it will be more informed: R. v. Lyons, supra, at page 368.
Parliament has determined that the National Parole Board proceedings are not to be adversarial in nature. On the other hand, Parliament has not legislated any alternative procedures for dangerous offenders. This is so despite the recognition by the Supreme Court that, from the perspective of the deprivation of liberty, there is a difference between inmates serving a determinate versus an indeterminate sentence: R. v. Lyons, supra, pages 345 and 362. In my opinion, hearings before the Board must reflect the differences associated with such status. The question is not whether the legislation is to be impugned but rather whether the Board should adopt procedures that are fully consistent with the requirements of section 7 of the Charter for this inmate who is serving an indeterminate sentence. The Court is not advocating the full menu of procedural rights associated with a trial-like proceeding. This would be unwise. Counsel are now permitted to be present only as an assistant within the meaning of subsection 140(8) of the Act. It is the Court’s opinion that, given the liberty issues at stake, when reviewing the status of a dangerous offender, counsel can be of assistance to the Board, as well as the inmate, in ensuring that important factual matters are not overlooked or that the Board does not adopt procedures which are basically unfair to the inmate. Counsel can assist by ensuring that facts that are relevant to the “condition” and “circumstances” of the inmate are properly before the Board. In essence, if one can avoid a cynical view regarding the role of counsel, counsel can assist the Board in making a more informed decision regarding parole. However, I do not see the need for the hearing to become adversarial or trial-like. This would be inconsistent with the manner in which the Board views its statutory mandate. The Court is of the same opinion regarding the right to examine the experts on their clinical reports.
The applicant also seeks a declaration that if examination of the authors of the clinical reports is not permitted, then the Board should not receive those reports to which the applicant objects and therefore should be excluded from evidence. Given the decision of the Court regarding the right to examine on the clinical reports, it is unnecessary for the Court to answer this question.
The applicant also notes that if the Court finds that the procedure provided by the Board is inappropriate regarding a breach of procedural fairness, then the declaration should issue that the Board cannot properly consider the Board’s November 22, 1991, decision regarding the parole of the applicant. It is the opinion of the Court that paragraph 101(b) of the Act requires that the Board consider all information relevant to a case. A previous decision regarding the same individual must be relevant given the responsibilities of the Board under the Act. Accordingly, there is no reason why the Board should not consider its previous decisions regarding this applicant. While the procedures required by this decision were not included in the 1991 hearing, any matters of concern to the applicant can be addressed at the next parole hearing of Mr. MacInnis.
The applicant also raises constitutional arguments regarding other provisions of the Charter, in particular section 9 and section 15. Given the decision of the Court regarding section 7 of the Charter, the Court is of the opinion that it is unnecessary to answer the questions regarding section 9 and section 15 of the Charter.
CONCLUSION
In summary, fairness under section 7 must be fundamental to justice: R. v. S. (R.J.), supra, at page 45 [of L’Heureux-Dubé J.’s reasons]. With respect to this inmate, serving an indeterminate sentence, the principles of fundamental justice mandate both the right to appear by counsel as well as the right to examine the authors on the clinical reports.
Accordingly, the application for judicial review is allowed. The matter is referred back to the Board for a rehearing in accordance with the reasons for decision and order.