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Information to be Supplied to an Inmate

17. (1) Subject to subsections (3) and (4), where, pursuant to the Act or these Regulations, the Board reviews a case, it shall, in writing, provide an inmate whose case is to be reviewed with the relevant information in its possession that is to be considered in the review or with a summary thereof. [SOR/91-563]
(2) Revoked [SOR/91-563]
(3) Subject to subsection (4), where the Board provides, in writing, an inmate with the information referred to in subsection (1) or a summary thereof, it shall do so at least 15 days before the date set for the review, except in the case of an interim hearing that is held pursuant to subparagraph 21.3(5)(b)(ii) or paragraph 21.3(5)(c) of the Act. [SOR/91-563]
(4) Where information referred to in subsection (1) comes into the possession of the Board during the 15 days preceding the date set for the review, that information or a summary thereof shall be provided to the inmate, orally or in writing, as soon as is practicable after it comes into the possession of the Board. [SOR/91-563]
(5) The Board is not required to supply information that should not be disclosed on grounds of public interest, including information the disclosure of which [SOR/91-563]
(a)	could reasonably be expected to threaten the safety of individuals;
(b)	could reasonably be expected to lead to the commission of a crime;
(c)	could reasonably be expected to be injurious to the security of penal institutions;
(d)	could reasonably be expected to be injurious to the physical or psychological health of the inmate; or
(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.
(6) An inmate may waive the right to be provided with the information referred to in subsection (1) or a summary thereof. [SOR/86-919] [SOR/86-917; SOR/86-919; SOR/91-563]
Judicial Consideration -
Re Gough and National Parole Board - Unreported, October 3, 1990, No. T-2439-90 (FCTD) (Butterworths No. 34845)
	- The applicant had been on parole for five and one half years when he was apprehended and his parole revoked as a result of a complaint made to the Correctional Service office. The complaints alleged that he had committed acts of sexual assault which involved the use of illegal drugs and that there had been acts of coercion towards a number of adult females. No information was given to the applicant as to the precise or even approximate dates or places or times when the alleged acts took place, nor were the names of the alleged victims given. The issue was whether the prisoner had been given sufficient information with respect to the allegations in order to satisfy the requirements of s7 of the Charter and whether the rules of fundamental justice were complied with. The court found that in this case there was no doubt that insufficient disclosure was made and that it was abundantly clear that both the common law principles of natural justice, which require a person to know the case against him, and the s7 Charter requirements of fundamental justice had not been met.
	The Board argued that the non-disclosure was justified by subs 17(5) of the Parole Regulations. But s17(5) of the Parole Regulations does not control the applicant's Charter rights -it is the other way around. As s7 of the Charter was not complied with can the non-compliance be justified pursuant to s1 of the Charter? A process that allows an individual in the applicant's position to be deprived of liberty on the basis of allegations which it is impossible for him to answer because he is not given enough detail with respect thereto and the withholding of that information is not subject to review by any court or other body independent of the Board, can not be said to be "a reasonable limit".
	The applicant argued that at the very least the Court should review the confidential documents in an in camera hearing for the purpose of ascertaining the validity of the Board's assertion. This, it was argued, would give the applicant at least some assurance that the Board's judgment was not spurious or arbitrary. The Board's position was that there is no jurisdiction in the Court to require that the confidential information be brought before the Court as part of the application for certiorari and mandamus. That information is not under review because it is not part of the record. The Court did not find it necessary to decide whether the confidential information forms part of the record because it felt s24(1) of the Charter, which gives the applicant "such remedy as the Court considers appropriate and just in the circumstances" could be relied upon to enable it to call for the filing of the confidential documents.
	The Court offered the Board a choice of orders: (1) an in camera hearing at which the Board would be given the opportunity to substantiate its reasons for refusing to disclose; and, (2) an order quashing the Board's decision and ordering a rehearing on the condition that further information be supplied to the applicant.
Re Gough and National Parole Board - Unreported, October 29, 1990, No. A-827-90 (FCA)
	- The Board appealed the order of the Trial Division ordering the confidential information considered by 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 Board to present specific evidence as to why non-disclosure of the information in question is justified. Neither party questions that the trial judge had discretion to adjourn the hearing to permit the Board to add to the evidence in support of its s1 justification, but the Board argues that the Court has no power to coerce it to produce particular evidence in support of that justification. It argues that the Court's function is to decide whether a s1 justification has been made, not to compel a party to produce the evidence which the Court considers may be necessary to make it out.
	While the Court sympathized with the trial judge not wishing to take the responsibility for putting a parolee back on the street when she knows that there may be good, but undivulged, reason why that would be unwise, that 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 decision 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. 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 authorized by s24(1) of the Charter, the learned trial judge was without jurisdiction to make it. The appeal was allowed and the matter referred back to the trial judge for a resumption of the hearing.
Re Gough and National Parole Board - Unreported, November 8, 1990, No. T -2439-90 (FCTD)
	- Upon the matter being referred back to the court, the court ruled that it was open to the National Parole Board to submit further argument and evidence in answer, to one or more of the following questions:
	(1)  Why is s17(5) a reasonable limit ...demonstrably justifiable in a free and democratic society even though there is no independent review mechanism of Board decisions taken thereunder?;
	(2)   Was the Board's decision, determining that release of the information to the applicant "could reasonably be expected to threaten the safety of individuals", supportable on the basis of the material before it?
	(3)   Does the public interest involved in non-disclosure pursuant to s17(5), in this applicant's case, outweigh the interest served by disclosure to the applicant?
Re Gough and National Parole Board (No.2)- Unreported, December 14, 1990, No. 2439-90 (FCTD) (Butterworths No. 35214)
	- The applicant had been on parole for five and one half years when he was apprehended and his parole revoked as a result of a complaint made to the Correctional Service office. The complaints alleged that he had committed acts of sexual assault which involved the use of illegal drugs and that there had been acts of coercion towards a number of adult females. No information was given to the applicant as to the precise or even approximate dates or places or times when the alleged acts took place, nor were the names of the alleged victims given. The Board argued that the non-disclosure was justified by subs 17(5) of the Parole Regulations. The Board conceded that if the applicant were not a paroled inmate, it would be a flagrant breach of his Charter rights for him to be deprived of his liberty without being given details of the allegations which underlie the deprivation. The requirement that an individual is entitled to know and be given an opportunity to respond to the case against him is essential not only to prevent abuses by people making false accusations, but also to give the persons who have been accused the assurance that he or she is not being dealt with arbitrarily or capriciously. The issue is not the information gathering process of Corrections; or whether the Board must disclose the complete Corrections file, or even if it has to disclose the identity of the informants. The issue is whether the Board is required to either release information to the applicant (when disclosure will necessarily reveal the source of that information) or forego reliance on that information in making a decision on the applicant's parole.
	The applicant's position (on full parole and "parole reduced" status) is as close to that of an individual who has unconditional liberty as it can be within the correctional system. An individual's liberty (even in a conditional liberty which a parolee enjoys) weighs very heavily on the scales when compared to competing interests. Regulation 17(5) is a limitation prescribed by law which the Board says justified its refusal to provide the applicant with details. The applicant's s7 Charter rights have been infringed by the Board's refusal to provide him with the confidential information upon which it relies. Thus the burden, is on the respondent to demonstrate that regulation 17(5), is a reasonable limit demonstrable justifiable in a free and democratic society pursuant s1.
	Regulation 17(5) is very broadly framed and no distinction is made between the non-disclosure of information essential to allow an individual to know the case against him or her and non-disclosure of information which is more peripheral in nature. Furthermore, s17(5)(e) seems to authorize the non-disclosure merely because the irli2rmation W8S received in confidence. This can never be a justification for limiting the guarantees of fundamental justice. Similarly, s17(5)(a) seems to require only the possibility of a threat and not a probability that harm would occur to an individual. These are disturbingly broad provisions. While regulation 17(5) can perhaps operate in certain circumstances, the regulation cannot be used to deny a paroled prisoner the kind of Information which was denied in this case.
Re Gough and National Parole Board (No.2)- Unreported, January 24, 1991, No. A-1107-90 (FCA) (Butterworths No. 35213)
	- The court noted that the trial judge had expressly declined to declare s17(5) of the Parole Regulations ultra vires and agreed with her conclusion that, in the circumstances of the case, the Board's recourse to that provision had violated the rights guaranteed to the Respondent by s7 of the Charter. The Board cannot take into account information it has not disclosed to the prisoner on parole applications.
Calvin v National Parole Board (No.1)- Unreported, June 30, 1980 (FCTD)
	- A parolee applied for "all the relevant information in the possession of the National Parole Board" pursuant to this section of the regulations. The Board elected to give the information orally and advised the parolee that they would do so at the hearing. The parolee applied for mandamus to compel the Board to comply with this section, s 1 (a) and (b) and s 2(e) of the Canadian Bill of Rights and to comply with its common law duty to act fairly, and pro- duce the information before the hearing. The court ordered production at least 36 hours before the date of the hearing.
Latham v Solicitor General of Canada et al- (1984) 12 CCC (3d) 9, 39 CR (3d) 78 (FCTD)
	- The parole officer and classification officer were in the hearing room the Board panel members prior to meeting with the parolee and his assistant and claimed that the discussion surrounded confidential police information and relied on this section in not disclosing this information to the applicant to give him an opportunity to respond. The court held that while this section might provide a legally effective limitation on any common law fairness requirements of disclosure, it would not be effective to limit the right which a parolee has under s7 of the Charter Fairness requires at least an ou1line being given to the person affected of the allegations being considered by a tribunal in deciding whether to deny that person his liberty. A law which purports to deny even this is not a reasonable limitation within the meaning of s1 of the Charter guaranteed in s7 thereof. Section 17 of the Parole Regulations should therefore not be applied in a manner to deny this right. This section cannot be invoked for such purposes.
See also Cadieux v The Director of Mountain Institution and the National Parole Board (1984) 13 CCC (3d) 330 (FCTD), in which this section was considered, although not directly applicable on the facts. The court followed the decision in Latham and held that this section nor s36.1 of the Evidence Act or s54 of the Canadian Human Rights Act or the provisions of the Privacy Act or even the provisions of the Policy and Procedures Manual regarding non-disclosure were effective to constitute a reasonable limit on s7 Charter pursuant to s1 of the Charter because they are too broadly framed to be reasonable.
Wilson v The National Parole Board- (1985) 44 CA (3d) 30, 10 Admin LA 171 (FCTD)
	- A prisoner applied for day parole and received a hearing at which time his application was denied. That decision was confirmed by the National Review Committee. The prisoner then applied for mandamus to compel a re-hearing in a fair and proper manner according to law and in particular, claimed that the Board exceeded its jurisdiction in acting on confidential information without revealing same to him or at least ensuring that sufficient information insofar as reasonably practicable under the circumstances was given to him to ensure he was aware of the case against him and was afforded a fair opportunity of answering it. The Board had relied on information in a confidential security file and had withheld that information from the prisoner. Before a decision was rendered the prisoner had a further hearing before the Board and was granted day parole and later full parole. However, because he was still on parole and would be on parole in the foreseeable future and continue to be in jeopardy by virtue of the confidential information, the court was prepared to decide the question in any event. The Court ordered the Board to make available to the prisoner the information contained in his security file, provided that the Board was not required to furnish him with such information referred to in s54(d)(ii) of the Canadian Human Rights Act if that information would automatically lead to the disclosure of the identity of an informer, and further, the Board was not required to furnish such information which was covered by the provisions of s54(c)(ii), (d)(ii) and (e) of the Canadian Human Rights Act. The court held that the National Parole Board has the same power as the minister under s54 of the Canadian Human Rights Act to make a decision withholding information. While that section of the Canadian Human Rights Act was repealed on November 23, 1982, it was in effect at the time of the applicant's parole hearing. The Court held that s17 of the Parole Regulations and by analogy, s54 of the Canadian Human Rights Act were limited in their application to the overriding pro- visions of s1 and s7 of the Charter of Rights but that there were nevertheless certain provisions in s54 of the Canadian Human Rights Act that did not breach those sections of the Charter and met the standards of fairness required by those sections. The Court agreed that withholding information simply obtained on a promise of confidentiality, express or implied, under s54(d)(ii), if no other reason existed for such withholding, might well breach the principles of fundamental justice required under s7 of the Charter: However, if such disclosure would automatically lead to the identity of an informer, then, in the court's view, such information must be kept secret.
Rice v National Parole Board- Unreported, July 2, 1985, No. T-988-85 (FCTD)
	- The applicant was granted parole and then the Board, on the basis of certain subsequent information received, decided to postpone the effective date of the latter's parole and to grant him another hearing to confront him with all the new information except certain confidential information. The applicant sought mandamus to compel disclosure of the confidential information. The court held, following Morgan v NPB (1982) 65 CCC (2d) 216; Re Caddedu and The Queen (1982) 4 CCC (3d) 97; Latham v Solicitor General of Canada (supra); and Cadieux and Director of Mountain Institution (supra); and Hewitt v NPB, Unreported, April 25, 1984, No.T-311-84 (FCTD) that a person retains the right not to be deprived of the very limited freedom he has while on parole except in accordance with the principles of fundamental justice and consequently s7 of the Constitution Act, 1982 applied.
	The court held further than in principle, an inmate has the right to obtain form the Board, prior to the hearing concerning his previously revoked parole, all relevant information it has in its possession, including privileged information and that the confidentiality of the information alone does not, in itself, justify a refusal to disclose it. If the Board chooses not to disclose the substance of the information simply because it comes from a confidential source, then the Board should not use the information in view of the seriousness of the consequences for the person whose parole has been revoked.
	However, the court noted certain rare exceptions to the principle of disclosure of privileged information. In the circumstances, the court found that if the disclosure cannot fail to reveal the source of the said information, especially where the lives of those who provided this confidential information are endangered, this will justify the non-disclosure of the confidential information. The court noted that this was a serious and exceptional situation where the court was satisfied that the Board duly considered the consequences of disclosing the privileged information as regards the revelation of its sources and the safety of the lives of the persons in question. The court felt that in such circumstances and in this context, the Board's ability to obtain confidential information and the Correctional Service of Canada's institutional orders are relevant consideration and that these grounds of public interest took precedence over the right to disclosure.
H v The Queen and National Parole Board - Unreported, November 7, 1985. No. T -2182-85 (FCTD)
	- This section does not apply to applications for day parole and an order of prohibition was granted to prevent the Board from considering suspicions in circumstances where it could not provide a sufficient detail of the case against the applicant for parole to enable the applicant to fairly respond. A new hearing before a freshly constituted panel was ordered in the interests of fairness and the appearance of fairness. Further, the provisions of the Privacy Act did not preclude disclosure on grounds of natural justice.
Ross v Warden of Kent Institution et al - (1987) 57 CR (3d) 79 (BCCA); leave to appeal to SCC refused (1987) 59 CR (3d) xxxiv (SCC)
	- These sections of the Parole Act authorizing gating are not unconstitutional and are not inconsistent with s7 of the Charter. "Fundamental justice requires that the inmate know the case against him and have a fair opportunity to meet it." These provisions of the Parole Act and regulation 17(5) do not entitle the Board to withhold relevant information from the inmate so that he does not know the case that he must meet and have a fair opportunity of answering it. "It is not essential to comply with the principles of fundamental justice that he know the sources of all the information before the Board as long as he's informed of the substance of that information". While reg17(5) authorizes the Board to withhold details from the inmate which might disclose the identity of an informer, it does not authorize the Board to withhold the substance of the information. The effect of these new provisions of the Parole Act is to alter the right of an inmate to serve a portion of his sentence on mandatory supervision by qualifying that right.
Quesnel v National Parole Board - Unreported, November 5, 1985, N. A-582-84 (FCA)
	- The applicant appealed the decision of the Parole Board at his post-suspension hearing on the ground that he was not given fair advance notice of the matters that would be raised at the hearing. Hugessen, J, writing for the court, dismissed the appeal. The court assumed, without deciding, that the Board did not give fair and proper advance notice to the applicant of all matters that would be raised at the post-suspension hearing but was of the view that because there was no doubt that those matters were fully aired at the hearing in the presence of the applicant and his lawyer, without any objection or request for an adjournment, the appeal should be dismissed. The court further held that the applicant's failure to take advantage of the review procedure in s22 of the regulations, even though offered to him by the Board after the expiry of the normal delay for doing so, created circumstances in which it was appropriate to deny the discretionary relief of certiorari.
Okeynan v Warden of Prince Albert Penitentiary - Unreported, March 25, 1988, No. T-261-88 (FCTD)
	- In quashing on certiorari a National Parole Board detention order on the grounds that the applicant was not given sufficient, specific details of the allegations contained in written reports to enable him to defend himself, Strayer, J reaffirmed earlier decisions of the court (Latham and Cadieux) in holding that a hearing by the National Parole Board which can affect the amount of time a convicted person actually serves in prison affects his "liberty" and thus it must be conducted in accordance with the "principles of fundamental justice" as required by s7 of the Canadian Charter of Rights and Freedoms.
	In addition, the court doubted that the particulars provided in the written reports were sufficient to even constitute a "summary" in writing of the "relevant information" to be considered in the review by the Board as required by s17 of the Regulations.
	However, the court noted certain rare exceptions to the principle of disclosure of privileged information. In the circumstances, the court found that if the disclosure cannot fail to reveal the source of the said information, especially where the lives of those who provided this confidential information are endangered, this will justify the non-disclosure of the confidential information. The court noted that this was a serious and exceptional situation where the court was satisfied that the Board duly considered the consequences of disclosing the privileged information as regards the revelation of its sources and the safety of the lives of the persons in question. The court felt that in such circumstances and in this context, the Board's ability to obtain confidential information and the Correctional Service of Canada's institutional orders are relevant consideration and that these grounds of public interest took precedence over the right to disclosure.
S17(3)
Cleary v Canada (Correctional Service)- (1990) 56 CCC (3d) 157 (FCA)
	- Due to a strike by Correctional Service employees an inmate was not provided with the relevant information 15 days prior to his detention hearing, as required by s 17(3) of the Parole Regulations. The Trial Division said that the provisions of the Parole Act and regulations were not penal in nature, and followed Milner v National Parole Board (1990) 9 WCB (2d) 387 (FCTD), ruling that the provisions setting time limits were directory. The Federal Court of Appeal reversed that decision (p159):
		"Whether the legislation is penal or not is irrelevant. What is relevant is that the decision involved is of importance to the appellant and has serious consequences to him. Moreover, there is little conviction in the "mandatory -directory" dichotomy to answer the question before us. At bottom what we are seeking is legislative intention. According to the Interpretation Act, RSC 1985, cl-21, s11, "shall" is to be construed as imperative.
	However, the court refused to grant certiorari on the grounds that is a discretionary remedy and the appellant had suffered no prejudice. The court noted that the appellant agreed that he had sufficient time to prepare his case and the Board had offered to adjourn the hearing.
S17(5)
Pulice v National Parole Board - Unreported, April 19, 1990, No. T -2871-89 (FCTD) (Butterworths No. 34066)
	- The applicant sought an order of certiorari quashing a decision of the Parole Board denying the applicant day parole, an order in the nature of mandamus requiring the Board to hold a new day parole hearing forthwith, an order of prohibition preventing the Board from taking into account any confidential information in determining whether or not to grant day parole to the applicant, or in the alternative, an order in the nature of mandamus requiring the respondent to disclose to the applicant sufficient information to enable him to properly contest the allegations made against him. The issue was the sufficiency of the information provided to the applicant by the National Parole Board. The Court found that all information other than that of a confidential nature had been promptly disclosed. It also found that the Board did disclose the gist of the confidential information and that the Board only withheld such information that, in its opinion, could not be disclosed on the grounds of public interest as authorized by ss 17(5) of the Parole Regulations. The court was of the view that in the circumstances the audi alteram partem principle (which requires the participation, in the making of a decision, of the individual whose rights or interests may be affected) did not require that more information be given to the inmate before asking for his representations at a hearing before the Board. The Court concluded that the Board did not breach the rules of natural justice, did not infringe s7 of the Charter and did not contravene s17 of the Parole Regulations.
Editorial Note - This case should be compared with Gough (supra). The decision of Mr. Justice Pinnard in Pulice of March 30, 1990 was referred to by Reid, J in Gough in her decision of October 3, 1990 at p10. The distinction between the Gough cases and this case would appear to be that the Court simply accepted the affidavit evidence supplied by the respondents as satisfying the Court that sufficient information was given to enable Mr. Pulice to respond.
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