A-827-90
National Parole Board (Appellant) (Respondent)
v.
Brian Gough (Respondent) (Applicant)
INDEXED AS: GOUGH v. CANADA (NATIONAL PAROLE BOARD)
(C.A.)
Court of Appeal, Mahoney, Hugessen and Desjar-
dins JJ.A.—Ottawa, October 19 and 29, 1990.
Constitutional law — Charter of Rights — Enforcement —
Trial Judge holding non-disclosure of details of complaints
giving rise to revocation of parole violation of parolee's consti
tutional rights — Relying on Charter, s. 24(1), ordering Parole
Board to produce evidence to justify infringement — Appeal
allowed — Trial Judge misconceiving Court's responsibility —
Board responsible for revocation of parole and justification of
decision in context of parolee's constitutional rights — Court's
duty to enforce parolee's constitutional rights if decision, when
challenged, not justified — As order made by Trial Judge not
remedy granted to aggrieved party, not authorized by Charter,
s. 24(1) — Matter referred back to Trial Judge for resumption
of hearing.
Parole — Trial Judge holding non-disclosure of details of
complaints giving rise to parole revocation violation of consti
tutional rights — Ordering National Parole Board to produce
confidential information to justify non-disclosure — Order
misconceiving roles of Board, Court — Board's duties to
remove parolee from street, justify decision — Charter, s.
24(1) limiting Court to granting remedies to aggrieved party
— Application referred back to Trial Judge for resumption of
hearing.
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. 1, 7, 24(1).
Federal Court Act, R.S.C., 1985, c. F-7, s. 52(b)(iii).
Parole Regulations, C.R.C., c. 1249, s. 17(5)(a) (as am.
by SOR/86-817, s. 4),(e) (as am. idem).
CASES JUDICIALLY CONSIDERED
REVERSED:
Gough v. Canada (National Parole Board), [1991] 1 F.C.
160 (T.D.).
COUNSEL:
Geoffrey Lester for appellant (respondent).
Elizabeth Thomas for respondent (applicant).
SOLICITORS:
Deputy Attorney General of Canada for
appellant (respondent).
David P. Cole, Toronto, for respondent
(applicant).
The following are the reasons for judgment
rendered in English by
MAHONEY J.A.: This appeal is taken from an
order of the Trial Division [[1991] 1 F.C. 160]
which, on an application for certiorari, man-
damus, and prohibition, ordered that confidential
information considered by the appellant, herein-
after "the Board", at a hearing which cancelled
the respondent's parole, be produced and disclosed
to the respondent's counsel and be subject of an in
camera hearing "for the purpose of enabling the
respondent to present specific evidence and/or
argument as to why non-disclosure of the informa
tion in question is justified". The relevant facts, as
set out in the oral reasons of the learned Trial
Judge, follow [at pages 162-163]:
The applicant had his parole cancelled by reason of a deci
sion of the Parole Board dated June 21, 1990. Prior to that time
he had been on parole for 5 1 / 2 years. This parole status was a
result of his having been convicted of non-capital murder in
1973. He served 11 years of a life sentence, before being
released on parole in 1984.
The parole suspension arose as a result of complaints made to
the Correctional Service Office on May 2 and 3, 1990. As a
result of those complaints and after an investigation relating
thereto, a warrant was issued for the applicant's arrest. This
was executed on May 11, 1990. At the time of the applicant's
arrest, he had established a good work record, a stable relation
ship with his girlfriend, was about to graduate from community
college and had full-time employment available.
The complaints which gave rise to the parole suspension
proceedings allege that Mr. Gough committed acts of sexual
assault, use of illegal drugs and coercion towards a number of
adult females.
The essence of the evidence was that the respond
ent had been an exemplary parolee during his 5'/z
years of supervised freedom and that no charges
had been laid or were proposed in respect of the
alleged incidents.
The learned Trial Judge found that both
common law principles of natural justice, which
require a person to know the case against him, and
the rights guaranteed the respondent by section 7
of the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, No. 44]]', had not
been met. That finding is not contested for pur
poses of this appeal. She also found that para
graphs 17(5)(a) and (e) of the Parole Regulations
[C.R.C., c. 1249 (as am. by SOR/86-817, s. 4)] 2
relied on by the Board, did not provide a section 1
justification for the denial of the section 7 rights.
The learned Trial Judge found it unnecessary to
determine whether the confidential information
was part of the record, stating [at page 169]:
The filing with the Court of the confidential reports is not
relevant to the issue of whether there has been a lack of
fundamental justice and therefore a breach of section 7. The
documents are relevant to an independent review of the subsec-
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.
2 17.
(5) The Board is not required to supply information that, in
its opinion, should not be disclosed on grounds of public
interest, including information the disclosure of which
(a) could reasonably be expected to threaten the safety of
individuals;
(e) could reasonably be expected to be injurious to the
conduct of lawful investigations or the conduct of reviews
pursuant to the Act or these Regulations, including any such
information that would reveal the source of information
obtained in confidence.
tion 17(5) assertion and to whether the respondent can demon
strate a section 1 justification.
The respondent expressly declined to argue that
the confidential documents are part of the record.
That concession makes unnecessary our dealing
with that question.
In concluding her reasons, the Trial Judge said
[at page 170]:
In the circumstances, I think the appropriate and just
remedy is that which Mr. Cole [applicant's counsel] suggests:
an in camera hearing at which the Parole Board is given the
opportunity to substantiate its reasons, for refusing to disclose,
with more specificity. In that way the applicant's interests can
be protected—in that some assurance will be given to him that
the Board's decision is not arbitrary—while at the same time
the Board's interests, in not having to disclose information
which it alleges would reasonably result in danger to the safety
of individuals or prejudice the conduct of investigations, will be
met (if the assertion that disclosure would reasonably result in
those consequences is established). If the Board prefers,
instead, that I enter an order quashing its decision and ordering
a rehearing only on condition that further information be
supplied to the applicant, I am prepared to do so.
It appears that the Board either misunderstood the
option offered by the Trial Judge or, on reflection,
reconsidered the wisdom of its election. Be that as
it may, the Board's position before us was that,
while it might be prepared to make the informa
tion available to the particular counsel, it could not
live with the order as a precedent.
In making the order, the learned Trial Judge
relied on subsection 24(1) of the Charter' and the
Board now asks for whose benefit is an order
requiring it to make out a section 1 justification in
a manner that it does not wish to make it out?
Neither party questions that the learned Trial
Judge had the discretion to adjourn the hearing to
permit the Board to add to the evidence in support
of its section 1 justification but the Board says that
3 24. (1) Anyone whose rights or freedoms, as guaranteed
by this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
she has no power to coerce it, against its will, to
produce particular evidence in support of that
justification. It argues that the Court's function is
to decide whether a section 1 justification has been
made out, not to compel a party to produce the
evidence which the Court considers may be neces
sary to make it out.
I sympathize with the learned Trial Judge not
wishing to take the responsibility for putting a
parolee back on the street when she knows that
there may be a good, but undivulged, reason why
that would be unwise. As she said [at page 170],
"To quash an order of the Parole Board, in a
situation such as the present, is not something
which should be lightly undertaken." That, how
ever, misconceives the Court's responsibility. It is
the responsibility of the Parole Board both to take
the parolee off the street and to justify that deci
sion in the context of the parolee's constitutional
rights. If it fails to justify the decision, when
challenged, it is the Court's responsibility to give
effect to the parolee's constitutional rights.
In my respectful opinion, the Board is correct.
An order requiring the party that has been found
to have infringed the constitutional rights of
another to produce evidence that may establish
that the infringement was justified, cannot, by any
reasonable stretch of language or imagination, be
held to be a remedy, appropriate and just in the
circumstances, granted to the aggrieved party. It is
for the party required to justify the infringement,
not the Court, to determine what evidence it is
prepared to present in justification. Since the order
made is not a remedy to the party whose constitu
tional rights have been infringed, it is not a remedy
authorized by subsection 24(1) of the Charter, and
the learned Trial Judge was without jurisdiction to
make it.
I would allow the appeal, set aside the order of
the Trial Division made October 4, 1990, and
pursuant to subparagraph 52(b)(iii) of the Federal
Court Act [R.S.C., 1985, c. F-7], refer the matter
back to the learned Trial Judge for a resumption
of the hearing. On resumption, the Trial Judge will
not, of course, be bound to renew or continue the
options she offered nor to devise new options; that
will be in her discretion. Since this appeal would
not have been necessary had the Board not misap
prehended the option offered it by the learned
Trial Judge, and since this is clearly something of
a test case, I would award the respondent his costs
of the appeal.
HUGESSEN J.A.: I concur.
DESJARDINS J.A.: I concur.
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