T-3296-81
Donald James Morgan (Applicant)
v.
National Parole Board (Respondent)
T-3297-81
Robert Walter Sango (Applicant)
v.
National Parole Board (Respondent)
Trial Division, Nitikman D.J.—Winnipeg, July 13
and September 15, 1981.
Prerogative writs — Parole — Applications for orders to
quash the decisions of the National Parole Board revoking
applicants' parole — Applicants allege and respondent denies
that Board considered pending criminal charges against appli
cants and then refused to permit adjournments of post-sus
pension hearings in order for applicants to obtain counsel —
Whether the Board erred in law and acted in excess of its
jurisdiction by denying requests for counsel contrary to s. 20.1
of the Parole Regulations and para. 2(d) of the Canadian Bill
of Rights — Whether the Board violated the duty of fairness
by failing to give the applicants notice of the matters to be
considered at the revocation hearing — Applications are dis
missed — Parole Regulations, C.R.C. 1978, Vol. XIII, c. 1249
as amended by SOR/81-318 — Canadian Bill of Rights, S.C.
1960, c. 44 [R.S.C. 1970, Appendix III].
Applications for orders to quash the decisions of the National
Parole Board revoking the parole of each applicant. While on
day parole, the applicants were arrested and charged with
criminal offences. The applicants' day parole was suspended by
the Board at separate hearings. Each applicant alleges that the
Board referred to the criminal charges and that he then
requested the aid of counsel and an adjournment for that
purpose. These allegations arc categorically contradicted in the
affidavit of the Board's representative. The issues are whether
the Board erred in law and acted in excess of its jurisdiction by
denying the applicants' requests to have counsel present at the
revocation hearing contrary to section 20.1 of the Parole
Regulations and paragraph 2(d) of the Canadian Bill of
Rights, and whether the Board violated the duty of fairness by
failing to give the applicants notice of the matters to be
considered at the revocation hearing.
Held, the applications are dismissed. None of the deponents
were cross-examined on their affidavits and no attempt was
made to adduce additional evidence. The applicants made no
request for assistance by a person of their choice to be present
during the hearing, nor for an adjournment. The issue of
fairness in respect of each of the applicants was fully met. The
applicants were fully informed during the hearing why their
cases were being reviewed. The nature of the hearing is intend
ed to be carried on in an informal manner and it is not
necessary that everything that will be brought out be detailed
before the hearing commences. The conduct of the hearing and
the avenues explored were in proper keeping and in accordance
with the provisions of the Parole Act. There is nothing in
section 20.1 suggesting or requiring any such information to be
given to an inmate at a parole hearing and it would seem if it
was intended that an inmate should be so informed, that section
would provide accordingly. The Board did not err or fail in its
duty in not advising applicants of the provisions of section 20.1.
The applicants' contentions that the Board's conduct of the
hearings was contrary to paragraph 2(d) of the Canadian Bill
of Rights are rejected.
Rain v. National Parole Board [1982] 1 F.C. 85, applied.
Mitchell v. The Queen [1976] 2 S.C.R. 570, applied. Cline
v. Reynett, Court No. T-894-81, March 18, 1981, applied.
APPLICATIONS.
COUNSEL:
Harry Peters for applicants.
Theodore K. Tax for respondent.
SOLICITORS:
Arne Peitz, Winnipeg, for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for orders ren
dered in English by
NITIKMAN D.J.: The above applications for
orders in each case to quash the determination
made by the respondent, the National Parole
Board (the Board) to revoke the parole of each
applicant, were, at the request of all parties, heard
together as they are based largely on the same
facts and both applicants were represented
throughout by the same counsel. The following
facts were agreed to:
1. On March 18, 1981 both applicants were
released on day parole to Half Way House,
Osborne Centre, Winnipeg.
2. On March 22, 1981 both applicants were
detained by the police and subsequently Sango was
charged with the offence of break, enter and theft
and Morgan with the offence of possession of
stolen goods.
The grounds in the Morgan application are as
follows:
1. THAT the said revocation of parole was made in excess of
jurisdiction and contains errors of law on the face of the record.
2. THAT the Respondent, The National Parole Board, erred in
law and acted in excess of jurisdiction by taking into account a
probability of criminal behaviour in the particular circum
stances of this case where
(a) no inquiry or hearing was conducted by the Respondent
National Parole Board into the facts and,
(b) the Respondent Board accepted as fact unproven allega
tions against the Applicant and,
(c) no counsel was present to assist the Applicant with regard
to the issue of the alleged criminal behaviour.
3. THAT in the alternative to ground 2 herein, the Respondent
National Parole Board violated the duty which lies upon it to
act fairly in deciding whether or not to revoke the Applicant's
parole, and more particularly, violated the duty of fairness by
failing to give the Applicant notice that the matters mentioned
in ground 2 herein were to be considered at the revocation
hearing, and by denying the Applicant's request for an adjourn
ment and to have counsel present when it became apparent that
these matters were being considered by the Respondent.
4. THAT, also in the alternative to ground 2 herein, the
Respondent National Parole Board erred in law and acted in
excess of jurisdiction by denying the Applicant's request to
have counsel present at the revocation hearing, contrary to
Section 20.1 of the Parole Regulations and Section 2(d) of the
Canadian Bill of Rights and the common law duty of fairness.
In the Sango application, grounds 1, 3 and 4 are
the same as in Morgan. Ground 2 reads:
2. THAT the Respondent, The National Parole Board, erred in
law and acted in excess of jurisdiction by taking into account
an allegation of possession of stolen property in the particular
circumstances of this case, where
(a) no inquiry or hearing was conducted by the Respondent,
The National Parole Board, into the facts concerning the
allegedly stolen goods, and,
(b) the Respondent Board accepted as fact unproven allega
tions against the Applicant, and,
(c) no counsel was present to assist the Applicant with regard
to the issue of the allegedly stolen goods.
In his affidavit in support of his application,
Morgan deposes that as a result of convictions for
the offence of break, enter and theft, he was
imprisoned in Stony Mountain Institution until
March 18, 1981, when he was released on day
parole; and while on such parole, resided at
Osborne Centre. Paragraphs 4 to 10 are as follows:
4. THAT on March 22nd, 1981, I was questioned by the police,
who learned that I was on day parole. I was then detained in
custody. Subsequently, a plea of not guilty was entered to a
charge of possession of stolen property, and a date of August
25th, 1981 was set for a preliminary hearing.
5. THAT on March 22nd, 1981 my day parole was suspended.
The stated reason for my parole suspension was my leaving the
Osborne Centre without permission. Attached hereto and
marked as Exhibit "A" to this my Affidavit is a copy of the
said violation report and suspension notice which was presented
to me on March 25th, 1981.
6. THAT prior to my revocation hearing, I contacted my lawyer
Stan Nozick, to ask that he appear at the hearing and request
that my day parole be reinstated. It was my belief that lawyers
could not appear at such hearings.
7. THAT on May 5th, 1981, I appeared before a two member
panel of the National Parole Board sitting at Stony Mountain
Institution. Also present was my counsellor Russ Muth.
8. THAT once the hearing commenced, members of the Parole
Board made reference to my alleged criminal involvement. As a
result of comments made, I concluded that they believed I was
involved in criminal behaviour, although I had not been asked
for my version of the events nor, it appeared, had an enquiry
been made into the facts. As the result of a conversation with
another inmate just prior to entering the revocation hearing, it
was my understanding that the Parole Board could not consider
outstanding criminal charges without a lawyer being present.
9. THAT therefore, at that point, I asked that the hearing be
adjourned in order that I could arrange for a lawyer to repre
sent me at the hearing. This request was denied and my parole
was revoked.
10. THAT on May 13th, 1981, the Parole Board supplied
written reasons for the revocation. These reasons indicate that
the revocation was at least partially based on the fact that the
Parole Board assumed that I was probably criminally involved.
Reason number 2 reads:
Circumstances of arrest highly indicative of involvement in
criminal behaviour.
Attached hereto and marked as Exhibit "B" to this my Affida
vit is a copy of the said letter.
Sango's affidavit sets out in part that as a result
of a conviction for theft, he was imprisoned in
Stony Mountain Institution until March 18, 1981,
when he was released on day parole and while on
such parole, resided at Osborne Centre. Para
graphs 4 to 11 are as follows:
4. THAT on March 22nd, 1981, I was questioned by the police,
who learned that I was on day parole. I was then detained in
custody. Allegedly, stolen goods were found in the room I
shared with three others [sic] persons at the Osborne Centre. I
was told by police officers that these goods were found in all
parts of this room.
5. THAT on or about March 22nd, 1981, I was charged with
offences of break, enter and theft and possession of stolen
property. Subsequently, pleas of not guilty were indicated in
Provincial Judges Court (Criminal Division) of Winnipeg, and
the date of August 25th, 1981 was set for a preliminary
hearing.
6. THAT the stated reason for my parole suspension was leaving
the Osborne Centre without authorization. Attached hereto and
marked as Exhibit "A" to this my Affidavit is a copy of the
said violation report and suspension notice which was presented
to me on March 25th, 1981. I was told at that time by Mr.
Russ Muth that my criminal charges could not be discussed at
my post-suspension hearing.
7. THAT on May 5th, 1981, I appeared before a two member
panel of the National Parole Board sitting at Stony Mountain
Institution. Also present were counsellors Jack Draho and Russ
Muth.
8. THAT I had not made arrangements for counsel to assist me
at the hearing, as I was not aware that I had a right to do so. I
was not aware of any amendments to the Parole Regulations
that provided for assistance at parole hearings.
9. THAT however, once the hearing commenced the members of
the Parole Board spoke of my pending charges, my involvement
with the police, and the confiscation of allegedly stolen goods
from my room. As a result of the comments made, I concluded
that they believed that I was guilty of the allegations, although
they had not asked for my version or made any other enquiry
into the facts. I related the facts deposed to above—that I had
shared a room with three other parolees and that I had been
told that the allegedly stolen goods had been found in all parts
of that room. I told them that I was not guilty. I then stated
that I had been told by Mr. Russ Muth that the criminal
charges would not be discussed at the hearing. It was my belief
that such matters could not be discussed, or at least not without
a lawyer being present.
10. THAT at that point I requested an adjournment of the
hearing until a later date when I could have my lawyer present.
I was told that there was nothing my lawyer could do for me
and that the Parole Board had already reached a decision to
revoke my parole.
11. THAT on May 14th, 1981, the Parole Board supplied
written reasons for the revocation. These reasons indicate that
the revocation was based at least partially on the pending
charges. Reason number 3 reads:
Found by police under most suspicious circumstances fol
lowed by stolen property found in his room at the Centre.
Attached hereto and marked as Exhibit "B" to this my Affida
vit is a copy of the said letter.
Exhibit "A" to each affidavit sets out in Sum
mary (How violation occurred): "Left Osborne
Centre without authorization" and that he will be
interviewed by his respective supervisor on April 1,
1981.
The letter from the Parole Board to Morgan
(Exhibit "B" to his affidavit) is dated May 13,
1981 and in relevant parts, reads:
Dear Mr. Morgan:
On May 5, 1981, the National Parole Board interviewed you
in response to your request for a Post Suspension Hearing. This
will confirm that the Board decided to revoke your day parole
with no recredit of remission.
The Board revoked your day parole for the following reasons:
1) Left Community Correctional Centre without authoriza
tion March 21, 1981, and subsequently, arrested by police.
2) Circumstances of arrest highly indicative of involvement
in criminal behaviour.
As the time remaining to be served to your new Mandatory
Supervision Date is less than two years, your case is not subject
to automatic review, and no parole review date will be set.
However, if you wish, you may apply for Parole and your case
will be reviewed by the Board within five months of receipt of
your application.
You may, however, request that the decision to revoke be
re-examined by Members of the Board who did not participate
in the decision. Pursuant to subsection 22(2) of the Parole
Regulations your request should be received by the Ottawa
division of the Board within thirty (30) days of the date of this
notification. To ensure full consideration, your request should
be supported by one or more of the grounds indicated on the
form NPB 32, which is available in your institution. You
should also be aware that the no Recredit of Remission decision
is not appealable.
The letter to Sango (Exhibit "B" to his affida
vit), dated May 14, 1981, in its relevant parts,
reads:
Dear Mr. Sango:
On May 5, 1981 the National Parole Board interviewed you
in response to your request for a Post Suspension Hearing. This
is to confirm the Board's decision of Day Parole Revoked with
no recredit of remission. Its reasons are as follows:
1. Left Centre without permission in a manner calculated to
deceive the staff.
2. Behaviour was not acceptable in that he was untruthful to
his supervisor by telling untruths about employment and
further drinking when he had been previously warned to
abstain.
3. Found by police under most suspicious circumstances
followed by stolen property found in his room at the Centre.
As the time remaining to be served to your new Mandatory
Supervision Date is less than two years, your case is not subject
to automatic review, and no parole review date will be set.
However, if you wish, you may apply for Parole and your case
will be reviewed by the Board within five months of receipt of
your application.
As your original sentence was five years or more, if you wish
to be considered for an Unescorted Temporary Absence, your
application should be submitted to your Classification Officer
three months in advance of your requested release date. The
decision for an Unescorted Temporary Absence in your case
will then be made by the National Parole Board.
You may, however, request that the decision to revoke be
re-examined by Members of the Board who did not participate
in the decision. Pursuant to subsection 22(2) of the Parole
Regulations your request should be received by the Ottawa
division of the Board within thirty (30) days of the date of this
notification. To ensure full consideration, your request should
be supported by one or more of the grounds indicated on the
form NPB 32, which is available in your institution. You
should also be aware that the no Recredit of Remission decision
is not appealable.
In an affidavit in the Morgan application, Denis
Chisholm, a member of the National Parole Board
Prairie Region, Saskatoon, who, as well, completed
an affidavit in the Sango application, deposes in
each affidavit:
THAT on behalf of the National Parole Board, I am the
respondent herein and as such have personal knowledge of the
matters hereinafter deposed to by me except where same are
stated to be based on information and belief.
He further deposes that on May 5, 1981 a post-
suspension hearing was conducted with each appli
cant at Stony Mountain Institution following a
letter to each, forwarded April 14, 1981, informing
them that the post-suspension hearing would be
held before members of the Board on or about
May 7, 1981. Paragraphs 4 to 12 in Chisholm's
affidavit in the Morgan application read:
4. THAT during the course of the post-suspension hearing,
DONALD JAMES MORGAN was informed of the reasons for the
post-suspension hearing, why his case was being reviewed by
the National Parole Board and the possible outcome of the
post-suspension hearing; that is, his day parole suspension could
be cancelled, his day parole could be terminated or his day
parole could be revoked as per Section 16 of the Parole Act.
5. THAT, during the course of the post-suspension hearing,
DONALD JAMES MORGAN was requested to outline his behavi
our while on day parole and to explain his behaviour while on
day parole where this behaviour was in violation of the terms
and conditions of the day parole; specifically, leaving the
Osborne Community Correctional Centre without permission
from his parole supervisor, consuming alcohol after he had been
informed not to do so, being arrested by the Winnipeg City
Police in the early morning hours of March 22, 1981, while in
company with another day parolee absent without permission
from the Osborne Centre while in what Winnipeg City Police
described as a recently vandalized rented automobile which
DONALD JAMES MORGAN had no permission to be in possession
of or to be in from his parole supervisor.
6. THAT at no time during the course of the post-suspension
hearing did DONALD JAMES MORGAN request an adjournment.
7. THAT at no time during the course of the post-suspension
hearing did DONALD JAMES MORGAN request an assistant of
his choice to be present during the process of the hearing.
8. THAT, since April 9, 1981, the Parole Regulations have given
federal inmates the right to have an assistant of their choice
appear with them during the course of any hearing held before
the National Parole Board. Since DONALD JAMES MORGAN'S
post-suspension hearing was conducted on May 5, 1981, if
DONALD JAMES MORGAN had requested an adjournment to
arrange for an assistant to appear with him, the National
Parole Board would have granted such a request, rendered a
reserve decision adjourning the hearing to a later date.
ATTACHED hereto and marked as Exhibit "B" to this my
Affidavit, is a copy of the said Parole Regulation.
9. THAT, during the course of the post-suspension hearing,
DONALD JAMES MORGAN was asked if he wanted to say
anything about the information available to the National
Parole Board surrounding the arrest by the Winnipeg City
Police of DONALD JAMES MORGAN in the early morning hours
of March 22, 1981, and the finding later of stolen property in
the room occupied by DONALD JAMES MORGAN at the Osborne
Community Correctional Centre. DONALD JAMES MORGAN
was informed by the National Parole Board that he was not
compelled to answer questions in regard to these incidents but
was given the opportunity to offer his version of the incidents
and whatever his involvement may have been therein if he so
chose.
10. THAT, prior to rendering a decision, the National Parole
Board asked DONALD JAMES MORGAN if he wished to make
any further representations on his behalf concerning his behavi
our on day parole and matters relating thereto.
11. THAT, at the conclusion of the post-suspension hearing, and
after further deliberation with my colleague, Mr. Ken How-
land, National Parole Board Member, Prairie Region, the
decision was made to revoke the day parole of DONALD JAMES
MORGAN. Accordingly, DONALD JAMES MORGAN was
informed verbally of this decision and the reasons for same.
The reasons outlined to DONALD JAMES MORGAN were:
—That he had violated the terms and conditions of his day
parole by leaving the Osborne Community Correctional
Centre without permission from his parole supervisor.
—That the circumstances of DONALD JAMES MORGAN'S arrest
by Winnipeg City Police on March 22, 1981, were highly
indicative of involvement in criminal behaviour; that is, being
found in the early morning hours absent without permission
from the Osborne Community Correctional Centre while in
company with another day parolee also absent from the
Osborne Community Correctional Centre in a rented
automobile which DONALD JAMES MORGAN had no permis
sion to be in possession of or to be in by his parole supervisor.
12. THAT according to Section 21 of the Parole Regulations,
DONALD JAMES MORGAN was informed in writing of the
National Parole Board's decision to revoke his day parole and
the reasons for making the decision. This letter was forwarded
to DONALD JAMES MORGAN on May 13, 1981, by Ms. J.
Kobiela, Senior Notifications Clerk, National Parole Board,
Prairie Region, Saskatoon, Saskatchewan.
ATTACHED hereto and marked as Exhibit "C" to this my
Affidavit is a copy of the said letter.
and paragraphs 4 to 12 in his affidavit in the
Sango application read:
4. THAT during the course of the post-suspension hearing,
ROBERT WALTER SANGO was informed of the reasons for the
hearing being held, why his case was being reviewed by the
National Parole Board and the possible outcome of the post-
suspension hearing; that is, his day parole suspension could be
cancelled, his day parole could be terminated or his day parole
could be revoked as per Section 16 of the Parole Act.
5. THAT, during the course of the post-suspension hearing,
ROBERT WALTER SANGO was requested to outline his behavi
our while on day parole and to explain his behaviour on day
parole where this behaviour was in violation of the terms and
conditions of his day parole; specifically, leaving the Osborne
Community Correctional Centre without permission from his
parole supervisor, reportedly submitting false information con
cerning his activities and whereabouts while absent from the
Osborne Community Correctional Centre, continuing to con
sume alcohol after being warned not to, and being arrested by
the Winnipeg City Police while absent without permission from
the Osborne Community Correctional Centre while in the
company with another day parolee who was absent without
permission from the Osborne Centre in the early morning hours
of March 22, 1981, in what Winnipeg City Police described as
a recently vandalized rented automobile which ROBERT
WALTER SANGO had no permission to be in possession of or to
be in from his parole supervisor.
6. THAT, at no time during the course of the post-suspension
hearing did ROBERT WALTER SANGO request an adjournment.
7. THAT at no time during the course of the post-suspension
hearing did ROBERT WALTER SANGO request an assistant of his
choice to be present during the process of the hearing.
8. THAT, since April 9, 1981, the Parole Regulations have given
federal inmates the right to have an assistant of their choice
appear with them during the course of any hearing held before
the National Parole Board. Since ROBERT WALTER SANGO'S
post-suspension hearing was conducted on May 5, 1981, if
ROBERT WALTER SANGO had requested an adjournment to
arrange for an assistant to appear with him, the National
Parole Board would have granted such a request, and rendered
a reserved decision adjourning the post-suspension hearing to a
later date.
ATTACHED hereto and marked as Exhibit "B" to this my
Affidavit, is a copy of the said Parole Regulation.
9. THAT, during the course of the post-suspension hearing,
ROBERT WALTER SANGO was asked if he wanted to say any
thing about the information available to the National Parole
Board indicating that ROBERT WALTER SANGO had been
charged with criminal offences while on day parole. ROBERT
WALTER SANGO was informed by the National Parole Board
that he was not compelled to answer questions in regard to
these alleged offences but was given the opportunity to offer his
version of the offences and whatever his involvement may have
been therein if he so chose.
10. THAT, prior to rendering a decision at the conclusion of the
post-suspension hearing, the National Parole Board asked
ROBERT WALTER SANGO if he wished to make any further
representations on his behalf prior to a decision being made.
11. THAT, at the conclusion of the post-suspension hearing, and
after further deliberation with my colleague, MR. KEN HOW=
LAND, National Parole Board Member, Prairie Region, the
decision was made to revoke the day parole of ROBERT WALTER
SANGO. Accordingly, ROBERT WALTER SANGO was informed
of this decision and the reasons for same. The reasons verbally
oulined to ROBERT WALTER SANGO were:
—That he had violated the conditions of his day parole by
leaving the Osborne Community Correctional Centre without
permission and in a manner that was intended to deceive the
staff of Osborne Centre (by leaving a "dummy" in his bed).
—That he had continued to consume alcohol after being
warned by the staff of Osborne Centre to abstain from the
use of alcohol because drinking alcohol was a violation of the
conditions of his day parole.
—That he deliberately gave false information to his parole
supervisor concerning his activities and whereabouts while
absent from the Osborne Centre.
—That he was found in a situation which the National Parole
Board considered to be of a questionable nature and one
which violated the terms and conditions of his day parole
when he was arrested by the Winnipeg City Police in the
early morning hours of March 22, 1981, in what Winnipeg
City Police described as a recently vandalized rented motor
vehicle which ROBERT WALTER SANGO had no permission to
be in or in possession of while in the company of another day
parolee who was absent without permission from Osborne
Centre; this followed by stolen property being found in his
room at the Osborne Community Correctional Centre.
12. THAT according to Section 21 of the Parole Regulations,
ROBERT WALTER SANGO was informed in writing of the Na
tional Parole Board decision to revoke his day parole and the
reasons for making the decision. This letter was forwarded to
ROBERT WALTER SANGO on May 14, 1981, by Ms. J. Kobiela,
Senior Notifications Clerk, National Parole Board, Prairie
Region, Saskatchewan.
ATTACHED hereto and marked as Exhibit "C" to this my
Affidavit is a copy of the said letter.
Subsections 20.1(1),(2) and (3) of the Parole
Regulations, C.R.C. 1978, Vol. XIII, c. 1249 as
amended by SOR/81-318, which have been in
effect since April 9, 1981, headed "Assistance at
Hearings", are as follows:
20.1 (1) Where a hearing is conducted pursuant to subsec
tion 15(1) or 20(2), the Board shall permit the inmate to be
assisted by a person of his choice.
(2) An inmate shall be responsible for securing the attend
ance at a hearing referred to in subsection (1) of the person
referred to in that subsection.
(3) The person referred to in subsection (1) shall be entitled
(a) to be present at the hearing at all times when the inmate
he is assisting is present at the hearing;
(b) to advise the inmate in respect of any questions put to
that inmate by the Board during the hearing; and
(c) at the conclusion of the hearing, to address the members
of the Board conducting the hearing, for a period of ten
minutes, on behalf of the inmate.
It will be noted that each applicant states he
requested to be allowed the aid of counsel and
adjournment for that purpose and that these alle
gations are categorically contradicted in Chis-
holm's affidavit.
In Rain v. National Parole Board [1982] 1 F.C.
85, decided on March 21, 1981, Smith D.J. faced
a similar conflict of evidence. At page 95 of his
reasons for decision, the learned Judge says:
Neither of the deponents was cross-examined on his affidavit,
and no attempt was made at the hearing before me to introduce
additional evidence. The facts stated in the two affidavits
cannot both be correct. However, without impugning the appli
cant's good faith, I would find it very difficult to believe that a
member of the National Parole Board would deliberately make
false statements about what transpired in his presence at a
hearing. I find nothing in the evidence which would suggest
that the Board members were not seeking to conduct the
hearing impartially and in complete accordance with their
responsibility. Accordingly I am unable to find that the appli
cant has proved that he requested or was refused permission to
have legal counsel present at the hearing.
As in the Rain case, none of the deponents were
cross-examined on their affidavits, and no attempt
was made at the hearing before me to adduce
additional evidence.
I come to the same conclusion in the within
applications, save to put it more emphatically and
state that I am quite satisfied that the applicants,
during the course of the post-suspension hearing,
made no request for assistance by a person of their
choice to be present during the hearing, nor for an
adjournment.
Having in mind the provisions of section 20.1 of
the Regulations, supra, I cannot believe that mem
bers of the Parole Board would refuse the requests
of the applicants, deposed to as having been made
by them.
I am not impressed by the argument that the
applicants were not made aware of the issue the
Board would be canvassing in the course of the
hearing. The applicants were fully informed during
the hearing why their cases were being reviewed
by the Board (see paragraphs 4, 5 and 9 of Chis-
holm's affidavits). The nature of the hearing is
intended to be carried on in an informal manner
and it is not necessary that everything that will be
brought out be detailed before the hearing com
mences. I am in no doubt the conduct of the
hearing and the avenues explored were in proper
keeping and in accordance with the provisions of
the Parole Act, R.S.C. 1970, c. P-2. In the
Morgan hearing, as will be noted, the reasons for
the revocation of the day parole were on two
grounds, as set out in paragraph 11 of Chisholm's
affidavit and in the letter of May 13, 1981, afore
mentioned, to Morgan from the Board, and in
respect of Sango, there were four grounds con
densed into three in the letter of May 14, 1981,
already referred to, to him from the Board.
The issue of fairness in respect of each of the
applicants was fully met.
In delivering the majority decision in Mitchell v.
The Queen [ 1976] 2 S.C.R. 570, Ritchie J. said at
page 593:
The case of Howarth v. National Parole Board [[1976] 1
S.C.R. 453] affords ample authority for the proposition that
the Parole Board is a statutory body clothed with an unfettered
discretion in the administration of the Parole Act and that in so
doing it is not bound to act on a judicial or quasi-judicial basis.
The very nature of the task entrusted to this Board, involving as
it does the assessment of the character and qualities of prison
ers and the decision of the very difficult question as to whether
or not a particular prisoner is likely to benefit from re-introduc
tion into society on a supervised basis, all make it necessary
that such a Board be clothed with as wide a discretion as
possible and that its decision should not be open to question on
appeal or otherwise be subject to the same procedures as those
which accompany the review of decision of a judicial or quasi-
judicial tribunal....
Applicants' counsel further urged that by reason
of the fact that amending section 20.1 of the
Regulations was enacted on April 9, 1981 and the
hearing was held May 5 of the same year, appli
cants should have been advised of the provisions
and given an adjournment, if requested, to obtain
assistance as referred to in said section.
There is nothing in section 20.1 suggesting or
requiring any such information to be given to an
inmate at a parole hearing and it would seem to
me if it was intended that an inmate should be so
informed, that section would provide accordingly. I
find it significant that subsection 20.1(2) states:
2o.1...
(2) An inmate shall be responsible for securing the attend
ance at a hearing referred to in subsection (1) of the person
referred to in that subsection.
In view of the above, I am not prepared to hold
that the Board erred or failed in its duty in not
advising applicants of the provisions of section
20.1. As earlier stated, I repeat I do not feel any
unfairness to the applicants resulted therefrom.
I find support for my thinking in a decision of
Addy J. in Cline v. Reynett, Court No. T-894-81,
delivered March 18, 1981, where at page 5 of his
reasons, the learned Judge said:
I would like to add that, except in clear and unequivocal
cases of serious injustice coupled with mala fides or unfairness,
judges, as a general rule, should avoid the temptation of using
their ex officio wisdom in the solemn, dignified and calm
atmosphere of the courtroom and substituting their own judg
ment for that of experienced prison administrators .... Simi
larly, courts should avoid laying down any detailed rules off
conduct for these administrators since courts have very little
practical knowledge of the problems involved in maintaining
prison security generally or of the specific tensions, pressures
and dangers existing in any particular prison or in any given
situation. Such detailed rules of conduct, if any, should be left
to the legislators or better still, to those possessing the required
expertise who might be charged by the legislators with the
issuing of regulations pertaining to these matters.
In view of my earlier findings, I reject appli
cants' contentions that the Board's conduct of the
hearings was contrary to paragraph 2(d) of the
Canadian Bill of Rights, S.C. 1960, c. 44 [R.S.C.
1970, Appendix III].
For all of the above reasons, both applications
are dismissed. There will be no costs.
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