T-2081-80
Rene Joseph Dubeau (Applicant)
v.
National Parole Board (Respondent)
Trial Division, Smith D.J.—Winnipeg, May 5 and
29, 1980.
Prerogative writs — Certiorari — Motion to quash respond
ent's order revoking applicant's parole on the grounds that
respondent either exceeded its jurisdiction or acted unfairly in
refusing to permit applicant to be represented by counsel — As
a result of breaching a condition of his parole, applicant
underwent a disciplinary interview with his parole officer —
That day applicant was charged with several criminal offences
to which he pleaded not guilty — One week later, his parole
was suspended for violation of condition concerning use of
credit — At a post-suspension hearing, applicant was ques
tioned about pending charges, and was denied the right to
counsel — Whether or not order revoking parole ought to be
quashed — Application allowed — Parole Act, R.S.C. 1970, c.
P-2, as amended, ss. 6, 10(1)(e), 11, 16(4), 23 — Parole
Regulations, C.R.C. 1978, Vol. XIII, c. 1249, as amended by
SOR/78-428, s. 20.
Motion for an order of certiorari to quash respondent's
decision to revoke applicant's parole on the grounds that the
Board exceeded its jurisdiction or that the Board acted unfairly
by refusing to permit applicant to be represented by counsel.
Applicant breached a condition of his parole by incurring debts
without the permission of his parole officer. At a disciplinary
interview, he signed an undertaking entitled Special Instruc
tion, to seek permission before obtaining credit, and acknowl
edging that his parole could be revoked for violation of this
condition. Later that day, the applicant was charged with
several criminal offences, and pleaded not guilty to all of them.
A week later, the applicant's parole was suspended. At a
post-suspension hearing, the applicant was questioned about the
pending criminal charges, and his request to have his lawyer
present was refused. The applicant's parole was revoked for
violation of the parole condition concerning use of credit. The
question is whether or not the Board's revocation of applicant's
parole ought to be quashed.
Held, the application is granted and the order revoking the
applicant's parole is quashed. The Board's statutory powers in
relation to granting and revoking parole are very wide. In view
of these wide powers, its absolute discretion, together with the
intention and need that matters of this kind be handled expedi-
tiously and are intended to be dealt with informally, the
revocation of the applicant's parole ought not to be quashed on
the ground solely that some questions were put to him about
alleged new criminal offences. The decision of the Board is
intended by Parliament to be final. This does not prevent the
Court from quashing a decision of an inferior tribunal on the
ground that it had no jurisdiction to make the decision or had
exceeded its jurisdiction. Nor does it prevent the Court from
quashing the decision of an administrative body on the ground
that it has not treated the applicant fairly. An administrative
board, not acting in a judicial or quasi-judicial capacity, is
expected to observe some rules of practice or procedures, as
necessary to discharge its duty of fairness. They are wide
enough to include the presence of legal counsel at a hearing in
cases where fairness requires it. An "interest" which is not a
"legal right" will, in a proper case, be protected by the Court,
e.g. by certiorari. Remaining at liberty was certainly an "inter-
est" of the applicant. Although the courts will not readily
interfere in the exercise of disciplinary powers, whether within
the armed services, the police force or the penitentiary, there is
no rule of law which necessarily exempts the exercise of such
disciplinary powers from review by certiorari. There being no
doubt that the Court has jurisdiction to grant certiorari, the
question still to be answered is whether the Board treated the
applicant fairly. Subject to certain well-known exceptions,
every person who is sui juris has a right to appoint an agent for
any purpose whatever, and that he can do so when he is
exercising a statutory right no less than when he is exercising
any other right. The applicant was exercising a statutory right
in asking for a post-suspension hearing. When tribunals are
dealing with matters which affect a man's reputation or liveli
hood or matters of serious import, natural justice then requires
that he be defended, if he wishes, by counsel or solicitor. It is at
least arguable that the Board should not have questioned the
applicant about the criminal charges. If that argument is not
maintainable, to refuse to allow the applicant to have legal
counsel present during the hearing was unfair treatment of the
applicant.
Martineau v. Matsqui Institution Disciplinary Board
[1980] 1 S.C.R. 602, applied. Fraser v. Mudge [1975] 3
All E.R. 78, distinguished. Peu v. Greyhound Racing
Association, Ltd. [1968] 2 All E.R. 545, agreed with.
APPLICATION.
COUNSEL:
Arne Peltz for applicant.
Brian Meronek for respondent.
SOLICITORS:
Arne Peltz, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
SMITH D.J.: This is a motion for an order of
certiorari to quash the determination of the
respondent, made on March 4, 1980 revoking the
applicant's parole.
The grounds on which the order is sought are:
1. That the revocation was made without jurisdiction and in
excess of jurisdiction and contains errors of law on the face of
the record.
2. That the Respondent erred in law and acted in excess of
jurisdiction by taking into account irrelevant considerations, to
wit, by considering the fact of pending criminal charges and the
alleged particulars thereof, and by questioning the Applicant in
respect thereto.
3. Alternatively, that the Respondent violated the duty which
lies upon it to act fairly in making its decision, more particular
ly by denying the Applicant's request to have counsel present at
the revocation meeting when the Respondent was questioning
him about the pending criminal charges.
4. Alternatively, that the Respondent erred in law and acted
without and in excess of jurisdiction by denying the Applicant's
request to have counsel present at the revocation hearing,
contrary to Section 2(d) of the Canadian Bill of Rights.
The facts are not complicated. The applicant
was incarcerated in Stony Mountain Institution as
a result of convictions for several criminal
offences, for a total term of three years and two
months, which term was to expire on June 4, 1981.
The respondent granted him parole, effective
November 13, 1979. One condition of his parole
was that he was to obtain approval from the
representative of the respondent, through the
parole supervisor before incurring debts by bor
rowing money or instalment buying.
On January 23, 1980 the applicant had a disci
plinary interview with his parole officer, at which
it was stated to him that he had opened charge
accounts at local business establishments, and
applied for and used credit, without permission
from the Parole Service. At the interview he was
asked to sign and did sign a document bearing the
heading, "Special Instruction", (Exhibit "A" to
his affidavit, filed). This document reads:
I, Rene Joseph Dubeau, agree to ask and receive permission
from the Correctional Service of Canada—Parole service prior
to using or applying for any credit cards or chequing accounts,
or incurring debts of any kind. I understand that if I violate this
instruction my Parole could be suspended.
Later, on the same day, the applicant was
arrested and charged with several criminal
offences alleged to have been committed on Janu-
ary 16, 1980. Not guilty pleas to all these charges
have been indicated. Preliminary hearing on them
has been set for June 2, 1980.
On January 30, 1980, the applicant's parole was
suspended. On February 7, 1980 the applicant
applied to the respondent for a post-suspension
hearing. The hearing took place on March 4, 1980
before two members of the National Parole Board,
in the presence of the applicant and his parole
officer. At the conclusion of the hearing the appli
cant's parole was revoked. The reasons for the
revocation, which were communicated to the appli
cant orally at that time, are stated in a letter,
dated March 18, 1980 from the respondent to the
applicant (Exhibit "C" to the applicant's affida
vit), as follows:
When conducting its review, the Board noted that within
three days of release on full parole, you violated your parole
conditions by obtaining a credit account without your supervi
sor's permission. Subsequently you displayed financial irre
sponsibility by exceeding your credit limit by more than double.
In the Board's opinion, such behaviour indicates that there has
been no basic change in you and it feels that to release you
would only invite further deceptive behaviour. The Board's
decision was, therefore, Parole Revoked.
According to what is stated in the applicant's
affidavit and not denied by the respondent, at the
hearing before the Board on March 4, 1980, the
Board questioned him about the pending criminal
charges against him. The Board had reports with
respect to these charges and asked him a number
of specific questions which required him to state
whether or not he had been involved in criminal
behaviour. After answering one or two questions
he told the Board that these matters were before
the criminal courts and would be dealt with there.
He was then told that it was necessary for the
Board to inquire into the matters giving rise to the
criminal charges. He replied that he wanted to call
his lawyer and arrange for him to be present. He
was told that in general lawyers were not permit
ted to be present at Parole Board hearings and
that his lawyer could not attend his hearing. He
then answered some further questions, but refused
to answer any questions concerning a written state
ment alleged to have been made by him to the
police.
The applicant's affidavit states that the Board
dealt briefly with the allegation that he had
incurred debts without proper permission. It
appeared to him that the Board was much less
interested in this matter than in the criminal
charges.
Counsel for the applicant submitted that, in
asking questions about the criminal allegations the
Board exceeded its jurisdiction because whether he
was guilty of any of the alleged offences was
irrelevant to the issue before it. The applicant's
parole had been suspended on the ground that he
had violated one condition of the parole. It was
from this suspension that he applied for a post-sus
pension hearing. I note that there is nothing in the
evidence to suggest that any of the alleged crimi
nal offences were in any way related to the breach
of the parole condition which led to the suspension
of his parole. Nor is there any evidence that, after
signing the "Special Instruction" on January 23,
1980, the applicant committed any new breach of
the parole condition.
It is clear from paragraph 6 of the applicant's
affidavit that he regarded the "Special Instruc
tion" as a warning applying to the future, because,
referring to the "Special Instruction," it states: "I
was asked to sign an agreement indicating I would
ask for and receive permission from Parole Ser
vices prior to becoming further involved with
credit."
The applicant does not contend and, on the facts
disclosed to me, could not prove that the Board, in
deciding to revoke the applicant's parole, was in
fact influenced to do so by the criminal charges.
Neither in the notice of suspension nor in the
reasons for revocation of parole is there any men
tion of criminal charges. On the other hand, bear-
ing in mind the facts stated in the four immediate
ly preceding paragraphs, there is reasonable
ground for concluding that the Board may have
been so influenced.
Counsel for the respondent submitted that the
question of the alleged criminal offences was not
completely irrelevant to the issue before the Board
and that the Board has a right in such a case to
look into all the circumstances. The circumstances
looked into must have some relevance to the ques
tion before the Board, which in this case was
whether the applicant's parole should be revoked
or not. If it were shown that the applicant, while
on parole, had engaged in criminal activities this
fact would certainly be relevant to the question of
revocation, and the Board was rightly interested in
knowing the established facts. In this case all that
happened was that charges of certain criminal
offences had been laid against the applicant, the
commission of which he denied. The laying of
charges is in no sense evidence that the accused
person has committed any offence. If the applicant
had admitted to the Board that he had committed
any of the offences charged against him the Board,
subject to the question of fairness discussed later
in these reasons, would have been entitled to take
that admission into account. However, while the
applicant did answer a few of the questions put to
him by the Board, there is no evidence that he
admitted that he was guilty of any of the offences
or that he said anything from which guilt might be
inferred. In these circumstances it is my opinion
that the existence of these charges could not be a
ground for revoking the applicant's parole. This
seems to have been the Board's opinion, because,
as mentioned supra, there is no mention of the
charges in the grounds for its decision to revoke
parole. The possibility still exists that the decision
of its members may have been influenced by their
existence.
It must be remembered that the respondent
Board is not a judicial tribunal but an administra
tive body and that its statutory powers in relation
to granting and revoking parole are very wide. The
most relevant provisions of the Parole Act, R.S.C.
1970, c. P-2, as amended, are as follows:
6. Subject to this Act, the Penitentiary Act and the Prisons
and Reformatories Act, the Board has exclusive jurisdiction
and absolute discretion to grant or refuse to grant parole or a
temporary absence without escort pursuant to the Penitentiary
Act and to revoke parole or terminate day parole.
10. (1) The Board may
(e) in its discretion, revoke the parole of any paroled inmate
other than a paroled inmate to whom discharge from parole
has been granted, or revoke the parole of any person who is
in custody pursuant to a warrant issued under section 16
notwithstanding that his sentence has expired.
Section 16 provides for suspension of parole by a
member of the Board or a person designated by
the Chairman. It then provides for reference of the
case to the Board, and by subsection (4) it
provides:
16....
(4) The Board shall, upon the referral to it of the case of a
paroled inmate whose parole has been suspended, review the
case and cause to be conducted all such inquiries in connection
therewith as it considers necessary, and forthwith upon comple
tion of such inquiries and its review it shall either cancel the
suspension or revoke the parole.
23. An order, warrant or decision made or issued under this
Act is not subject to appeal or review to or by any court or
other authority.
11. Subject to such regulations as the Governor in Council
may make in that behalf, the Board is not required, in consider
ing whether parole should be granted or revoked, to personally
interview the inmate or any person on his behalf.
Section 11 is affected by section 20 of the
Parole Regulations, C.R.C. 1978, Vol. XIII, c.
1249 as amended by SOR/78-428 which reads:
20. (1) Where, in the case of a federal inmate,
(a) parole granted to the inmate has been suspended,
(b) the inmate is in custody, and
(c) the inmate's case has been referred to the Board pursuant
to subsection 16(3) of the Act,
the Board shall not revoke the inmate's parole until a period of
fifteen days has elapsed following receipt by the Board of the
referral.
(2) Where the case of an inmate has been referred to the
Board pursuant to subsection 16(3) of the Act and that inmate
has applied for a hearing in respect of the referral during the
period referred to in subsection (1), the Board shall
(a) commence a hearing as soon as practical following
receipt by the Board of the application; and
(b) inform the inmate of the date of the hearing at least
fourteen days before the date the hearing is to commence.
From the foregoing provisions of the Act and
the Regulations several things are clear:
1. Under section 6 of the Act the Board has sole
jurisdiction to revoke parole and the decision to
revoke is a matter within its absolute discretion.
2. By subsection 16(4) the Board is directed to
review the case of a suspended parolee and to
make all inquiries that it considers necessary in
connection therewith, but it is not required to
hold a hearing or interview the person whose
parole has been suspended.
3. The provision in section 11, expressly stating
that, subject to regulations that may be made,
the Board is not required to personally interview
the inmate or anyone on his behalf leads to the
inference that it is not, apart from what may be
provided in regulations, required to hold a
hearing.
4. The overall result is that, in exercising its sole
power and absolute discretion in connection with
revocation of parole, the Board is largely free to
use its own judgment in deciding how it will
proceed.
5. The only restriction in this respect, that is
relevant to the facts of this case, is the require
ment in section 20 of the Regulations that,
where the case has been referred to the Board
under subsection 16(3) of the Act, the Board
shall hold a hearing. (There is also section 22 of
the Regulations, which provides that where,
inter alia, an inmate's parole has been revoked
the Board may, and if so requested by the
inmate within thirty days of being notified of
the Board's decision shall, cause the decision to
be re-examined by Board members who did not
participate in the decision. In this case the appli
cant did not request a re-examination and the
Board did not cause one to be made.)
Section 20 of the Regulations applies directly to
the facts of this case. It requires that a hearing be
held but says nothing about the manner in which it
is to be conducted. It is my view that Parliament
intended the Board to act expeditiously and infor
mally when dealing with revocation of parole and
that section 20 of the Regulations should not be
understood to purport to change this intention so
as to indicate that the hearing it requires to be
held is to be conducted with all the trappings of a
formal hearing.
In view of the wide powers given to the Board,
its absolute discretion, together with the intention,
and I think need, that matters of this kind be
handled expeditiously and are intended to be dealt
with informally, I have come to the conclusion that
the revocation of the applicant's parole ought not
to be quashed on the ground solely that some
questions were put to him about alleged new crimi
nal offences.
I note further that the decision of the Board is
intended by Parliament to be final. Section 23 of
the Act provides:
23. An order, warrant or decision made or issued under this
Act is not subject to appeal or review to or by any court or
other authority.
It is well established law that a provision of this
kind does not prevent the Court from quashing a
decision of an inferior tribunal or administrative
body on the ground that it had no jurisdiction to
make the decision or had exceeded its jurisdiction
in doing so. Nor does it prevent the Court from
quashing the decision of an administrative body on
the ground that it has not treated the applicant
fairly. An administrative body which, in a particu
lar matter, is not acting in a judicial or quasi-judi
cial capacity, is not bound by all the legal rules
that affect a Court, nor is it subject to all the rules
of natural justice, but it is obligated to act fairly
toward a person whose conduct it is examining. In
this motion counsel for the applicant has based his
main argument on the application of this obliga
tion to act fairly.
Any lingering questions about the jurisdiction of
this Court to deal with motions of certiorari con
cerning decisions of federal administrative bodies
that may have existed prior to the recent decision
of the Supreme Court of Canada, in the case of
Martineau v. Matsqui Institution Disciplinary
Board [1980] 1 S.C.R. 602, have, in my view, been
completely answered by that judgment. In that
case the appellant was an inmate of the Matsqui
Institution (penitentiary). For a disciplinary
offence he was sentenced to fifteen days in the
special corrections unit of the institution. He
launched two applications—one to the Federal
Court (Trial Division) [[1978] 1 F.C. 312] for
certiorari, the other to the Federal Court of
Appeal [[1976] 2 F.C. 198] for judicial review
under section 28 of the Federal Court Act, R.S.C.
1970 (2nd Supp.), c. 10. The certiorari application
was kept pending while that to the Court of
Appeal was dealt with. The Court of Appeal dis
missed that application and its decision was
affirmed by the Supreme Court ([1978] 1 S.C.R.
118). The dismissal was on the ground that the
Court of Appeal had no jurisdiction because the
decisions were administrative decisions "not
required by law to be made on a judicial or
quasi-judicial basis" and were therefore expressly
excluded from the jurisdiction of the Court under
section 28.
The application for certiorari was then proceed
ed with. It succeeded before Mahoney J. in the
Trial Division, but his decision was reversed by the
Court of Appeal [[1978] 2 F.C. 637], on the
ground that though the ambit of certiorari has
expanded, "it continues to have application only
where the decision attacked is either judicial in
character or is required by law to be made on a
judicial or quasi-judicial basis."
On appeal the Supreme Court [ [ 1980] 1 S.C.R.
602] unanimously reversed the decision of the
Court of Appeal. Two judgments were written, one
by Pigeon J., which was concurred in by Martland,
Ritchie, Beetz, Estey and Pratte JJ., the other by
Dickson J., which was concurred in by the Chief
Justice and McIntyre J.
In his judgment, Pigeon J. referred at page 634
to Bates v. Lord Hailsham ([1972] 3 All E.R.
1019), quoting (in part) the words of Megarry J.
at page 1024:
... Let me accept that in the sphere of the so-called quasi-judi
cial the rules of natural justice run, and that in the administra
tive or executive field there is a general duty of fairness ....
He then stated that these words had been
accepted "as a common law principle" by the
majority of the Supreme Court in Nicholson v.
Haldimand-Norfolk Regional Police Commis
sioners [1979] 1 S.C.R. 311, at page 324. In that
case judicial review under The Judicial Review
Procedure Act, 1971 of Ontario, S.O. 1971, c. 48,
was allowed against the decision of a police com
mission to dispense with the services of a con
stable, who, because his status was still that of a
probationary constable, did not have a right to a
quasi-judicial hearing. Although accepting that
the termination of "a master servant relationship
would not, per se, give rise to any legal require
ment of observance of any of the principles of
natural justice," the majority held that, in the case
of a public office like a constable, there was a
common law duty to act fairly which fell short of a
duty to act quasi-judicially but nevertheless could
be enforced by judicial review.
Proceeding further to review the question of
judicial review of disciplinary decisions, Pigeon J.
referred to the recent decision of the Court of
Appeal in England in R. v. Board of Visitors of
Hull Prison, Ex p. St. Germain [1979] 1 All E.R.
701, quoting from the headnote, in part, the fol
lowing [at page 635]:
The courts were the ultimate custodians of the rights and
liberties of the subject whatever his status and however
attenuated those rights and liberties were as the result of some
punitive or other process, unless Parliament by statute decreed
otherwise. There was no rule of law that the courts were to
abdicate jurisdiction merely because the proceedings under
review were of an internal disciplinary character and ..., the
Divisional Court had been in error in refusing to accept
jurisdiction.
Pigeon J. near the end of his judgment [at page
637], said that in respect of disciplinary offence
proceedings:
The requirements of judicial procedure are not to be brought in
and, consequently, these are not decisions which may be
reviewed by the Federal Court of Appeal under s. 28 of the
Federal Court Act, a remedy which, I think is in the nature of a
right of appeal. However, this does not mean that the duty of
fairness may not be enforced by the Trial Division through the
exercise of the discretionary remedies mentioned in s. 18 of the
Federal Court Act.
Dickson J., in the course of his judgment, made
an exhaustive review of the expanding scope of
certiorari as it has been developed by the courts in
both England and Canada, particularly during the
last two or three decades. On the question of
jurisdiction, as applied to the facts of the case,
which was the only question before the Supreme
Court, his conclusion was in complete agreement
with that of Pigeon J. His examination of the
views expressed in the many judgments reviewed
by him led him further afield with respect to the
scope of certiorari as he considered its application
in various circumstances other than those Pigeon
J. was concerned with in the cases referred to by
him. To my mind the judgment is a very clear
exposition of the important aspects of certiorari
with which it deals. It will be welcomed alike by
judges and practitioners of law.
Pigeon J. dealt with a point, not discussed
directly by Dickson J., which is important to the
decision in the case before me, namely, whether
refusal of penitentiary authorities (or in this case
the National Parole Board) to permit legal counsel
to be present and represent a person whose con
duct is under examination at a hearing is review-
able on certiorari. It is the applicant's claim that
he was entitled to be represented by counsel at the
Parole Board hearing. The Board's refusal to grant
his request for counsel is the basis for his claim
that he was not treated fairly. At page 636 he
referred to the English Court of Appeal decision in
Fraser v. Mudge [1975] 3 All E.R. 78; [1975] 1
W.L.R. 1132, which was a case in which a prison
er who had been charged with a disciplinary
offence (assaulting a prison official), applied for
an injunction and an order that he was entitled to
the assistance of counsel at the hearing before the
Board of Visitors. The Court of Appeal unani-
mously upheld the lower Court's refusal of the
injunction. Pigeon J. quoted from the judgments of
Lord Denning M.R. and Roskill L.J. At pages
1133-1134 of the W.L.R. report, Lord Denning
said:
... We all know that, when a man is brought up before his
commanding officer for a breach of discipline, whether in the
armed forces or in ships at sea, it never has been the practice to
allow legal representation. It is of the first importance that the
cases should be decided quickly. If legal representation were
allowed, it would mean considerable delay. So also with
breaches of prison discipline. They must be heard and decided
speedily. Those who hear the cases must, of course, act fairly.
They must let the man know the charge and give him a proper
opportunity of presenting his case. But that can be done and is
done without the matter being held up for legal representation.
I do not think we ought to alter the existing practice ....
Roskill L.J. referred to the English Prison Rules
1964, and said, at page 80 All E.R.:
... One looks to see what are the broad principles underlying
these rules. They are to maintain discipline in prison by proper,
swift and speedy decisions, whether by the governor or the
visitors; and it seems to me that the requirements of natural
justice do not make it necessary that a person against whom
disciplinary proceedings are pending should as of right be
entitled to be represented by solicitors or counsel or both.
Pigeon J. then stated, at page 637:
It appears to me that the proper view of the situation of a
prison inmate in respect of disciplinary offence proceedings was
taken in what I have just quoted.
The foregoing pronouncements are authorita
tive, determining that in matters of prison disci
pline an inmate has no general right to be repre
sented by counsel at a hearing before a prison
authority. In my view this does not mean that
there are no circumstances in which the courts
should find that, under the principle of fairness, he
should be permitted to have counsel with him.
Further, a parole board, dealing with a case of
alleged breach of a parole condition, is not in the
same position as is a prison authority dealing with
a case of assault by an inmate on a prison guard or
official. In the first case the urgency for a quick
decision is not so great or so apparent as in the
second.
Dickson J. mentioned, without comment, the
English Court of Appeal decision in Fraser v.
Mudge, (supra) but, with respect to the applica
tion of the principle of fairness, some of his state
ments, though not directly concerned with
representation by counsel, seem to point to the
view I have expressed in the preceding paragraph.
At page 614 Dickson J. said that in Martineau
(No. 1) Pigeon J. had denied that a directive made
by the Commissioner was a "procedural code", but
had also rejected the suggestion that mere fairness
in its "good faith" sense fulfilled the obligation of
fairness on the part of an administrative body. He
quoted Pigeon J.'s statement made at page 127 of
the Supreme Court Reports:
With respect, I find it difficult to agree with the view that
Directive No. 213 merely requires that a disciplinary decision
such as the impugned order be made fairly and justly.
Dickson J. drew from this statement, the follow
ing conclusion:
Implicitly, then, the majority in Martineau (No. 1) accepted
a measure of procedural content in a duty of fairness resting
upon the board—something more than the absolute minimum
of "good faith", but something less than strict application of
the procedure set forth in the directive.
The words "a measure of procedural content" in
the context of a "duty of farness" clearly mean
that an administrative board, not acting in a judi
cial or quasi-judicial capacity, is expected to
observe some rules or practices of procedure, as
necessary to discharge its duty of fairness. They
are wide enough to include the presence of legal
counsel at a hearing in cases where fairness
requires it.
At page 619 Dickson J. quoted from the judg
ment of Lord Denning M.R. in Schmidt v. Secre
tary of State for Home Affairs [1969] 2 Ch. 149
(an English Court of Appeal decision), at page
170:
The speeches in Ridge v. Baldwin [[1964] A.C. 40] ... show
that an administrative body may, in a proper case, be bound to
give a person who is affected by their decision an opportunity of
making representations. It all depends on whether he has some
right or interest, or, I would add, some legitimate expectation,
of which it would not be fair to deprive him without hearing
what he has to say.
The "opportunity of making representations"
mentioned in this passage is not in question in the
present case. It is to be inferred from the statutory
provision for a post-suspension hearing by the
Parole Board. The words "right or interest" in the
passage indicate that an "interest" which is not a
"legal right" will, in a proper case, be protected by
the Court, e.g.: by certiorari.
Other decisions and academic articles cited by
Dickson J. amplify this point and at page 622 he
stated his conclusion in the following paragraph:
In my opinion, certiorari avails as a remedy wherever a
public body has power to decide any matter affecting the rights,
interests, property, privileges, or liberties of any person.
Granting that parole is a "privilege" and not a
"right", remaining at liberty was certainly an "in-
terest" as well as a "privilege" of the applicant.
Dickson J. dealt with one more question of
jurisdiction that may be regarded as having some
relevance to the present motion. This is the matter
of what has been called the "disciplinary excep
tion". He cited three cases in which it was held
that review by way of certiorari does not go to a
body such as the armed forces, police, or firemen,
which have their own forms of private discipline
under their own rules. By analogy with these cases
it has been contended that disciplinary powers are
beyond judicial control and that this extends to
prison discipline. Dickson J. did not agree with
that contention. He reviewed several decisions of
higher courts during the last twenty-five years, in
England, New Zealand and Canada. His final
conclusion is found at page 628.
It seems clear that although the courts will not readily
interfere in the exercise of disciplinary powers, whether within
the armed services, the police force or the penitentiary, there is
no rule of law which necessarily exempts the exercise of such
disciplinary powers from review by certiorari.
I accept this as a correct statement of the law.
There being no doubt in my mind that the Court
has jurisdiction to grant certiorari, the question
still to be answered is whether the Board treated
the applicant fairly, and in particular whether its
refusal to permit him to have his legal counsel
present at the hearing amounted to unfair treat
ment that would warrant the Court, in exercising
its discretion, to grant the application for
certiorari.
At this point it is pertinent to refer to one more
decision, one cited by counsel for the applicant and
strongly relied on by him. It is Pett v. Greyhound
Racing Association, Ltd. [1968] 2 All E.R. 545,
an English Court of Appeal decision. A trainer of
racing greyhounds employed by a club was
accused of giving a dog drugs or of not exercising
proper control over the dog so that someone else
drugged it. Such a case was normally dealt with by
the Association's racing stewards at a hearing,
without representation by counsel for the accused.
The club objected to any legal representation, the
club secretary saying in his affidavit that this
would causé delay and complications that would
largely frustrate the stewards' intention to conduct
their meetings expeditiously and with complete
fairness. The Association's counsel before the
Court of Appeal argued that the procedure was a
matter for the stewards alone, and that if they
decided not to hear lawyers it was not for the
courts to interfere.
Lord Denning M.R. did not agree. At page 549
he said the charge was a serious one. If guilty he
might be suspended or his licence might not be
renewed. The charge concerned his reputation and
livelihood. He then said:
On such an inquiry, I think that he is entitled not only to
appear by himself but also to appoint an agent to act for him.
Even a prisoner can have his friend.
He said that the general principle in such cases
had been stated by Stirling J. in Jackson & Co. v.
Napper. In re Schmidt's Trade-Mark (1887) 35
Ch. D. 162 at page 172:
... that, subject to certain well-known exceptions, every person
who is sui juris has a right to appoint an agent for any purpose
whatever, and that he can do so when he is exercising a
statutory right no less than when he is exercising any other
right.
In passing I note that in the present case the
applicant was exercising a statutory right in asking
for a post-suspension hearing.
Lord Denning proceeded to say, in part:
Once it is seen that a man has a right to appear by an agent,
then I see no reason why that agent should not be a lawyer. It is
not every man who has the ability to defend himself on his own
.... If justice is to be done, he ought to have the help of
someone to speak for him; and who better than a lawyer who
has been trained for the task? I should have thought, therefore,
that when a man's reputation or livelihood is at stake, he not
only has a right to speak by his own mouth. He has also a right
to speak by counsel or solicitor.
Lord Denning referred to a contrary view
expressed by Maugham J. in Maclean v. Workers
Union [1929] All E.R. Rep. 468 at page 471 and
then said:
All I would say is that much water has passed under the
bridges since 1929. The dictum [referring to Maugham J.'s
statement] may be correct when confined to tribunals dealing
with minor matters where the rules may properly exclude legal
representation .... The dictum does not apply, however, to
tribunals dealing with matters which affect a man's reputation
or livelihood or any matters of serious import. Natural justice
then requires that he can be defended, if he wishes, by counsel
or solicitor.
In the present case the matter before the Parole
Board was certainly serious. It involved his liberty,
albeit conditional, which he enjoyed on parole, and
also the possible loss of remissions of part of his
sentence. In this respect the case parallels very
closely that of Pett v. Greyhound Racing Associa
tion, Ltd.
I am not forgetting that eight years later, in
Fraser v. Mudge (supra) the same eminent judge
expressed the opposite view in a unanimous judg
ment of the Court of Appeal in respect of matters
coming before an inmate disciplinary board, but in
my view the present case is distinguishable from
Fraser v. Mudge. The National Parole Board is
not an inmate disciplinary board. It does not deal
with breaches of prison discipline by inmates. It
reviews sentences and in its discretion grants or
refuses applications for parole and it has similar
discretionary power to revoke parole.
The facts in the present case have been stated
fairly completely at the beginning of these reasons.
Some additional information should be mentioned
now.
Paragraph 8 of the applicant's affidavit begins
with these two sentences:
8. That when my parole officer learned of the criminal charges,
her initial decision was that notwithstanding my detention in
custody, my parole would not be suspended. Several days later,
this decision was reversed.
These sentences require some comment. No
great weight can be given to what is said in the
first sentence because though it is stated as a fact,
there is no evidence of the source of his knowledge
of his parole officer's decision. Further there is no
evidence that his parole officer, R. H. Schau, had
the power to make such a decision. Nowhere is it
disclosed that she was a person designated by the
National Parole Board under section 16 of the
Parole Act as a person who may suspend parole.
The actual suspension, which occurred six days
after the applicant was charged with new criminal
offences alleged to have been committed while he
was on parole, was not made by her but by Sandra
J. Miller, Section Supervisor, who is stated, on the
suspension notice (Violation Report), Exhibit "B"
to the applicant's affidavit, to be a person so
designated. Nevertheless these sentences are state
ments of fact, made under oath and are not denied,
either in the affidavit of her parole officer or
elsewhere. I think it probable that the parole offi
cer learned of the existence of the charges within a
day or two after the applicant's arrest and that
these sentences may be taken to indicate her view
at that time. This conclusion is consistent with the
fact that suspension, though stated to be based on
the violation of a parole condition, did not occur
until six days after the disciplinary interview and
with the fact that at that interview he was asked to
sign and did sign the "Special Instruction" (see
early in these reasons). As stated earlier the taking
of the "Special Instruction" seems like the giving
of a warning, implying that as things stood at that
time no steps leading to revocation of parole would
be taken. Any further breach of the condition
described in the warning document could result in
revocation of parole. No further breach of that
kind occurred, or probably could have occurred,
since he was arrested that same day and charged
with new criminal offences alleged to have been
committed one week prior to the disciplinary
interview.
Following his suspension on January 30, 1980,
the applicant applied for a post-suspension hear
ing. There is nothing to indicate that at that
hearing there would be anything argued about
except the reason stated for the suspension and
whether, in view of the "Special Instruction" he
should have been suspended in the absence of any
further breach of the condition. Certainly there is
no evidence that he was given notice that he would
be questioned about the new criminal charges.
These charges were of serious concern, but he was
pleading not guilty to them and had not been tried,
let alone convicted on them.
The actual questions put to the applicant at the
Parole Board hearing are not in evidence. We have
only the statement in the applicant's affidavit, not
denied, that they required him to state whether or
not he had been involved in criminal behaviour. He
was not told what was the purpose of the questions
or to what use his answers might be put, only that
it was necessary for the Board members to inquire
into the matters giving rise to the charges. We
know that he answered a few questions but we do
not know either what the questions were or what
his answers were.
My conclusion is that in view of all the circum
stances outlined supra, and notwithstanding the
Board's absolute discretion to revoke or not revoke
the applicant's parole, it is at least arguable that
its members should not have questioned him about
the criminal charges. If that argument is not main
tainable, it is nevertheless my view that to refuse
to allow him to have legal counsel present during
the hearing was unfair treatment of the applicant.
I am mindful also of the fact that the primary
purpose of certiorari is to see that minor tribunals
conduct their hearings correctly and fairly. This
purpose has been stated to be even more important
than that of protecting individual rights.
The application is granted and the order made
by the respondent on March 4, 1980, revoking the
applicant's parole, is quashed, with costs to the
applicant.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.