Mooring v. Canada (National Parole Board)

Mooring v. Canada (National Parole Board)
Collection
Supreme Court Judgments
Date
1996-02-08
Report
[1996] 1 SCR 75
Case number
24436
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 24436
Decision Content
Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75
The National Parole Board and the
Warden of Kent Institution Appellants
v.
Ian Ross Mooring Respondent
and
The Attorney General for Ontario and
the Attorney General of British Columbia Interveners
Indexed as: Mooring v. Canada (National Parole Board)
File No.: 24436.
1995: May 31; 1996: February 8.
on appeal from the court of appeal for british columbia
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
Constitutional law ‑‑ Charter of Rights ‑‑ Exclusion of evidence ‑‑ Jurisdiction ‑‑ Parole ‑‑ Parole Board revoking accused's statutory release partly on basis of evidence gathered in manner that may have been unconstitutional ‑‑ Whether Parole Board "court of competent jurisdiction" for purpose of excluding evidence under s. 24(2) of Canadian Charter of Rights and Freedoms .
Constitutional law ‑‑ Charter of Rights ‑‑ Court of competent jurisdiction ‑‑ National Parole Board ‑‑ Exclusion of evidence -- Canadian Charter of Rights and Freedoms, s. 24 .
The respondent, who had been serving a term of imprisonment following convictions for robbery and other related offences, was released on mandatory supervision and obtained work as a roofer. When responding to a call reporting that two men had been seen attempting to break into a car, police officers found the respondent in his van with another man. They searched the van and found a stolen handgun as well as what could have been housebreaking equipment. The respondent was arrested and ultimately charged with possession of housebreaking instruments, being the occupant of a motor vehicle containing a restricted weapon and possession of stolen property. When interviewed by a parole officer, he claimed that the tools and equipment found in the van were required for his profession as a roofer and that he was unaware that a gun was in the van. Following the interview the parole officer recommended that the respondent's statutory release be revoked. Proceedings on all charges against the respondent were later stayed, apparently because Crown counsel believed that the search of the van violated the Canadian Charter of Rights and Freedoms , and that evidence concerning the search would not be admissible in a trial. The Parole Board nevertheless revoked the respondent's statutory release, and the Appeal Division affirmed the Board's decision. The British Columbia Supreme Court dismissed the respondent's application for an order for relief in the nature of habeas corpus with certiorari in aid. The Court of Appeal, in a majority decision, allowed the respondent's appeal from that decision. According to the majority, the Board was a court of competent jurisdiction within the meaning of s. 24 of the Charter , with the ability to exclude evidence where such evidence was obtained by a Charter violation. The Board's decision was quashed and the respondent was released from custody.
Held (McLachlin and Major JJ. dissenting): The appeal should be allowed on the ground that the National Parole Board is not a court of competent jurisdiction for the purpose of excluding evidence under s. 24(2) of the Charter .
Per L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: A court or tribunal will only be a "court of competent jurisdiction" within the meaning of s. 24 of the Charter where it has jurisdiction over the parties, the subject matter, and the remedy sought. Even assuming that the Parole Board has jurisdiction over the parties and the subject matter, both its structure and function and the language of its constituting statute show that it is not empowered to make the order sought. The Board acts in neither a judicial nor a quasi‑judicial manner. It does not hear and assess evidence, but instead acts on information. The Board acts in an inquisitorial capacity without contending parties. From a practical perspective, neither the Board itself nor the proceedings in which it engages have been designed to engage in the balancing of factors that s. 24(2) demands. In the Board's risk assessment function, the factors which predominate are those which concern the protection of society. In assessing the risk to society, the emphasis is on ensuring that all reliable information is considered provided it has not been obtained improperly. The language of the Corrections and Conditional Release Act also confers on the Board a broad inclusionary mandate. Not only is the Board not bound to apply the traditional rules of evidence, but it is required to take into account "all available information that is relevant to a case". As a result, the Parole Board lacks jurisdiction over the "remedy" within the meaning of this Court's decision in Mills. It follows that the Board is not a "court of competent jurisdiction" for the purposes of s. 24(2) of the Charter .
The law is well settled that statutory tribunals such as the Parole Board are bound by a duty of fairness in deciding upon the rights or privileges of individuals. The Board must ensure that the information upon which it acts is reliable and persuasive. While decisions of the courts on the admissibility of evidence, including admissibility under s. 24(2) of the Charter , are pertinent regarding the exclusion of relevant evidence, they are not binding on the Board. As a statutory tribunal, the Board is also subject to the dictates of s. 7 of the Charter and must comply with the principles of fundamental justice in the conduct of its proceedings. This does not mean, however, that it must possess or exercise a power to exclude evidence that has been obtained in a manner that contravenes the Charter . While the principles of fundamental justice are not limited to procedural justice, it does not follow that a tribunal that applies the rules of fairness and natural justice does not comply with s. 7 .
Per Lamer C.J.: For the reasons given by Sopinka J., the National Parole Board is not a court of competent jurisdiction for the purposes of excluding evidence under s. 24(2) of the Charter . Contrary to the majority view in Mills, however, it can be assumed that the Court would now conclude that a preliminary inquiry judge is a court of competent jurisdiction for such purposes. The primary purpose of the preliminary inquiry, which is clearly spelled out in s. 548(1) of the Criminal Code , is to ensure that before an individual is placed on trial, the Crown has gathered sufficient evidence to establish a prima facie case. Since "sufficient evidence" means sufficient admissible evidence, by necessary implication the Code empowers a preliminary inquiry judge to apply the traditional rules of evidence and in some cases to exclude inadmissible evidence. Moreover, this role of the preliminary inquiry judge is clearly spelled out by s. 542(1) of the Code in the context of confessions.
Per La Forest J.: Sopinka J.'s reasons were agreed with. This case is not in any way inconsistent with the decision of the majority in Mills.
Per McLachlin and Major JJ. (dissenting): The purpose of s. 24 of the Charter is to ensure that Charter rights and guarantees are respected by providing a just and appropriate remedy for Charter breaches. The section is to be interpreted in such a way that there will always be a court of competent jurisdiction to award such relief where there is a final determination of the rights and duties of the citizen. There are a number of practical advantages to allowing administrative tribunals to decide constitutional issues in spite of the lack of formal evidentiary rules and legal training of tribunal members. The primary advantage is to ensure that a citizen can rely on Charter guarantees when the tribunal is in a position to determine the rights of that citizen. Further, the Charter issue can be dealt with in the context in which it arises without necessitating duplicate, expensive and time‑consuming application to a court. A specialized tribunal in reaching its decision sifts the facts and compiles a record for the benefit of a reviewing court. The expertise and specialized competence of the tribunal can also be of invaluable assistance in constitutional interpretation. These practical advantages should not apply with any less force to a tribunal granting a remedy under s. 24 than to a tribunal declining to enforce a constitutionally invalid statutory provision.
An administrative tribunal can be a "court of competent jurisdiction" where the enabling statute grants jurisdiction over the parties, the subject matter and the remedy sought. It is clear that the Board has jurisdiction over the party and the subject matter. The remedy to be considered under the third stage of the test is the specific remedy the applicant seeks under the Charter for the breach of a Charter right, which in this case is the exclusion of evidence. The legislation governing the Board confers the jurisdiction to grant this remedy, since it contemplates that the Board must exclude from its consideration any information which is irrelevant or unreliable. The fact that the Board meets the three requirements of the test is sufficient to establish that it is a court of competent jurisdiction under s. 24 of the Charter . The governing statute also contemplates that Charter principles should be applied, as it requires the Board to observe the principles of fundamental justice in making its decision. Finally, policy considerations militate in favour of recognizing this body as a court of competent jurisdiction to grant a just and appropriate Charter remedy. The test of bringing the administration of justice into disrepute in s. 24(2) is flexible and designed to allow specific exclusionary principles to be developed in the particular context in which the evidence is being received. This limited basis for exclusion protects the right of a parolee to rely upon the constitutional guarantees and obtain an effective remedy while also providing an appropriate contextualization to the particular role of the Parole Board, whose paramount concern is public safety.
Cases Cited
By Sopinka J.
Referred to: Mills v. The Queen, [1986] 1 S.C.R. 863; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Mitchell v. The Queen, [1976] 2 S.C.R. 570; R. v. Gardiner, [1982] 2 S.C.R. 368; Morrissey v. Brewer, 408 U.S. 471 (1972); Grimsley v. Dodson, 696 F.2d 303 (1982); United States v. Winsett, 518 F.2d 51 (1975); Pratt v. United States Parole Commission, 717 F.Supp. 382 (1989); United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (1970); United States v. Bazzano, 712 F.2d 826 (1983); Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.
By Lamer C.J.
Referred to: Mills v. The Queen, [1986] 1 S.C.R. 863; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; New Brunswick v. O'Leary, [1995] 2 S.C.R. 967; Doyle v. The Queen, [1977] 1 S.C.R. 597; United States of America v. Shephard, [1977] 2 S.C.R. 1067; R. v. Pickett (1975), 28 C.C.C. (2d) 297.
By La Forest J.
Referred to: Mills v. The Queen, [1986] 1 S.C.R. 863.
By Major J. (dissenting)
Mills v. The Queen, [1986] 1 S.C.R. 863; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Tétreault‑Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22; R. v. Seaboyer, [1991] 2 S.C.R. 577; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; R. v. Garrett, [1907] 1 K.B. 881; Re Nash and the Queen (1982), 70 C.C.C. (2d) 490; Re United Nurses of Alberta, Local 115 and Foothills Provincial General Hospital Board (1987), 40 D.L.R. (4th) 163; R. v. Toker (1984), 11 D.L.R. (4th) 456; Dubois v. The Queen, [1985] 2 S.C.R. 350; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, rev'g (1982), 67 C.C.C. (2d) 252; R. v. Gardiner, [1982] 2 S.C.R. 368; Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Elkins v. United States, 364 U.S. 206 (1960); R. v. Collins, [1987] 1 S.C.R. 265; United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (1970); United States v. Winsett, 518 F.2d 51 (1975); United States v. Workman, 585 F.2d 1205 (1978); R. v. Pearson, [1992] 3 S.C.R. 665.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 24(1) , (2) .
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 4 (g), 100 , 101 , 107(1) , 147(1) , 151(2) .
Criminal Code, R.S.C., 1985, c. C‑46, ss. 542(1) , 548(1) [rep. & sub. c. 27 (1st Supp.), s. 101 ].
Parole Act, R.S.C., 1985, c. P‑2 [rep. 1992, c. 20, s. 213].
Penitentiary Act, R.S.C., 1985, c. P‑5 [rep. 1992, c. 20, s. 214].
Authors Cited
Chambers English Dictionary, 7th ed. Cambridge: Cambridge University Press, 1988.
Cole, David P., and Allan Manson. Release From Imprisonment: The Law of Sentencing, Parole and Judicial Review. Toronto: Carswell, 1990.
Concise Oxford Dictionary of Current English, 8th ed. Oxford: Clarendon Press, 1990.
APPEAL from a judgment of the British Columbia Court of Appeal (1994), 93 C.C.C. (3d) 415, 50 B.C.A.C. 255, 82 W.A.C. 255, 24 C.R.R. (2d) 329, 35 C.R. (4th) 92, reversing a decision of Brenner J. (1993), 82 C.C.C. (3d) 289, 16 C.R.R. (2d) 332, 16 Admin. L.R. (2d) 315, dismissing the respondent's application for habeas corpus with certiorari in aid. Appeal allowed, McLachlin and Major JJ. dissenting.
S. David Frankel, Q.C., and Sandra E. Weafer, for the appellants.
Jeffrey R. Ray and John Conroy, for the respondent.
Hart Schwartz and Dianne Dougall, for the intervener the Attorney General for Ontario.
Kevin E. Gillese, for the intervener the Attorney General of British Columbia.
The following are the reasons delivered by
1 Lamer C.J. -- I have had the benefit of reading the reasons of my colleagues and agree with my brother Sopinka J. in both his result and the reasoning he employs to reach the conclusion that the National Parole Board is not a court of competent jurisdiction for the purposes of excluding evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms .
2 I wish, however, to add short concurring reasons to express my view concerning the implications of both Justice Sopinka's and Justice Major's reasons in this case for the majority view expressed in Mills v. The Queen, [1986] 1 S.C.R. 863, that a preliminary inquiry judge is not competent to exclude evidence under s. 24(2) .
3 Major J. concludes in his reasons that the National Parole Board is a court of competent jurisdiction because it has jurisdiction not only over the parties and the subject matter but also over the remedy. He reaches this latter conclusion, as he must do under the Mills test, principally because of his interpretation of the legislation governing the procedures before the Parole Board. On this remedial jurisdiction point, Major J. writes (at para. 76):
The remedy to be considered under the third stage of the Mills test is the specific remedy which the applicant seeks under the Charter for the breach of a Charter right. However, the question to be determined is not whether the legislation grants the jurisdiction to direct this remedy under the Charter but rather simply whether it grants the jurisdiction to grant this sort of remedy. [Emphasis in original.]
Major J. answers this question in the affirmative on the basis of his finding that "[t]he statutory requirement that the Board must exclude from its consideration information which is irrelevant or unreliable establishes that the Board has jurisdiction to exclude evidence" (para. 85).
4 On the other hand, Sopinka J. concludes that the National Parole Board does not meet the third branch of the Mills test because it is not empowered by its enabling legislation to make the kind of order sought by the respondent. He does so in part because he finds that the Parole Board does not have the function or structure of a court, but primarily because he finds that it is not given any power by statute to apply exclusionary rules of evidence or even apply the traditional rules of evidence in the making of its original decision to grant parole or later in its decision, if called upon, to revoke or modify parole conditions.
5 Therefore, Sopinka and Major JJ. agree on the analytical approach to be applied only to differ on the conclusion reached by the application of that approach. It is important to point out that their framework is entirely consistent with my reasons in Mills and with recent decisions in this Court concerning the s. 24 status of labour arbitrators. In both Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, and New Brunswick v. O'Leary, [1995] 2 S.C.R. 967, this Court was obviously satisfied that the granting of damages was part of the arsenal of remedies that the enabling statute empowered the decision makers in those cases to grant and therefore they were a court of competent jurisdiction to grant damages for the purposes of s. 24(1) .
6 What I wish to highlight is that applying the reasoning of both Sopinka and Major JJ. in this case to the majority view in Mills concerning the constitutional status of a preliminary inquiry judge leads one inexorably, as a matter of principle and logic, to reach a different conclusion than that reached by McIntyre J. in Mills. In Doyle v. The Queen, [1977] 1 S.C.R. 597, this Court held that the powers of a preliminary inquiry judge are only those conferred either expressly by statute or by necessary implication. The primary purpose of the preliminary inquiry is to ensure that before an individual is placed on trial, the Crown has gathered sufficient evidence to establish a prima facie case. This purpose is clearly spelled out in s. 548(1) of the Criminal Code, R.S.C., 1985, c. C-46 . In United States of America v. Shephard, [1977] 2 S.C.R. 1067, Justice Ritchie, for the majority at p. 1080, held that "sufficient evidence" means sufficient admissible evidence. Consequently, by necessary implication of s. 548(1) , the Code empowers a preliminary inquiry judge to apply the traditional rules of evidence and in some cases to exclude inadmissible evidence in the determination of the sufficiency calculus. Moreover, this role of the preliminary inquiry judge is clearly spelled out by s. 542(1) of the Code in the context of confessions. Section 542(1) states that "[n]othing in this Act prevents a prosecutor giving in evidence at a preliminary inquiry any admission, confession or statement made at any time by the accused that by law is admissible against him" (emphasis added). See R. v. Pickett (1975), 28 C.C.C. (2d) 297 (Ont. C.A.). Consequently, even after Mills, trial judges continued to have the jurisdiction, under the common law, to exclude confessions where they were satisfied that a reasonable doubt existed as to their voluntariness.
7 Therefore, in light of ss. 542(1) and 548(1) of the Criminal Code and in light of the reasoning employed in this case by both Sopinka and Major JJ., I feel justified in assuming that given, to paraphrase Sopinka J., "the structure and function" of a preliminary inquiry court and "the language" of the Code, we now are reaching the conclusion that a preliminary inquiry judge is a court of competent jurisdiction to exclude evidence pursuant to s. 24(2) of the Charter .
The following are the reasons delivered by
8 La Forest J. -- I have had the advantage of reading the reasons of my colleagues. I agree with Justice Sopinka. I simply want to add that, with due respect for the views of the Chief Justice, I do not think this case is in any way inconsistent with the decision of the majority in Mills v. The Queen, [1986] 1 S.C.R. 863.
The judgment of L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ. was delivered by
9 Sopinka J. -- This appeal concerns the National Parole Board's decision to revoke the respondent's parole based in part on evidence gathered in a manner that may have violated the respondent's constitutional rights. Specifically, the Court must determine whether or not the Board is a "court of competent jurisdiction" for the purpose of making an order excluding evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms . If the Board is not a court of competent jurisdiction, the Court must determine what practice the Board should follow when faced with information that has been gathered in a manner that would be excluded by a court of competent jurisdiction.
I. Facts
10 In 1985, the respondent was sentenced to a term of imprisonment totalling nine years, four months and five days, following convictions for robbery and other related offences. On November 14, 1991, the respondent was released on mandatory supervision (now called statutory release). The respondent subsequently obtained work as a roofer.
11 On July 21, 1992, the New Westminster Police Department received a call reporting that two men had been seen attempting to break into a car. Police officers responded to the call and found the respondent in his van with another man. The officers searched the van and found a stolen handgun as well as what could have been housebreaking equipment.
12 The respondent was arrested and charged with possession of housebreaking instruments and possession of a restricted weapon. The charges were subsequently amended to possession of housebreaking instruments, being the occupant of a motor vehicle containing a restricted weapon and possession of stolen property.
13 On July 30, 1992, the respondent was interviewed by a parole officer. During that interview, the respondent claimed that the tools and equipment found in the van were required for his profession as a roofer. The respondent also claimed that he was unaware that a gun was in the van. Following the interview, the parole officer recommended that the respondent's statutory release be revoked.
14 On August 31, 1992, counsel for the Attorney General directed a stay of proceedings on all charges against the respondent. The respondent later claimed that his counsel had informed him that Crown counsel believed that the search of the van violated the Charter , and that evidence concerning the search would not be admissible in a trial.
15 On September 4, 1992, the area manager of the parole office recommended to the National Parole Board that it cancel the suspension of the respondent's statutory release on the basis that the charges had been stayed. A post-suspension hearing was held by the Board. As a result of that hearing, the Board revoked the respondent's statutory release.
16 The respondent applied to the Appeal Division of the Board, a procedure conducted entirely in writing. The Appeal Division subsequently affirmed the Board's original decision. The respondent applied to the Supreme Court of British Columbia for an order for relief in the nature of habeas corpus with certiorari in aid.
17 Brenner J. of the Supreme Court of British Columbia dismissed the respondent's application: (1993), 82 C.C.C. (3d) 289, 16 C.R.R. (2d) 332, 16 Admin. L.R. (2d) 315. In his view, the issue before the Court was "whether, on the facts of this case, the reliance on this evidence at the Board hearing would bring the administration of justice into disrepute contrary to s. 24(2) of the Charter " (p. 291 C.C.C.). Brenner J. concluded that since the evidence was real evidence that existed irrespective of the Charter violation, it was properly considered by the Board.
18 The respondent appealed to the Court of Appeal for British Columbia, where his appeal was allowed by a majority: (1994), 93 C.C.C. (3d) 415, 24 C.R.R. (2d) 329, 50 B.C.A.C. 255, 82 W.A.C. 255, 35 C.R. (4th) 92. According to the majority, the Parole Board was a court of competent jurisdiction within the meaning of s. 24 of the Charter , with the ability to exclude evidence where such evidence was obtained by a Charter violation. Taggart J.A. dissented, concluding that the statutory mandate of the Board did not make it a court of competent jurisdiction. In the result, the Board's decision was quashed and the respondent was released from custody.
II. Relevant Statutory Provisions
19 In the midst of the proceedings with which the present appeal is concerned, the statutory framework governing the granting of parole was substantially changed. On November 1, 1992, the Penitentiary Act, R.S.C., 1985, c. P-5, and the Parole Act, R.S.C., 1985, c. P-2, were repealed and the Corrections and Conditional Release Act, S.C. 1992, c. 20 , came into force. Mandatory supervision became statutory release. Any procedure started under the Parole Act was to be continued under the Corrections and Conditional Release Act . The applicable sections of the current Act, therefore, provide as follows:
Corrections and Conditional Release Act, S.C. 1992, c. 20
100. The purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law‑abiding citizens.
101. The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are
(a) that the protection of society be the paramount consideration in the determination of any case;
(b) that parole boards take into consideration all available information that is relevant to a case, including the stated reasons and recommendations of the sentencing judge, any other information from the trial or the sentencing hearing, information and assessments provided by correctional authorities, and information obtained from victims and the offender;
. . .
(f) that offenders be provided with relevant information, reasons for decisions and access to the review of decisions in order to ensure a fair and understandable conditional release process.
. . .
107. (1) Subject to this Act, the Prisons and Reformatories Act , the Transfer of Offenders Act and the Criminal Code , the Board has exclusive jurisdiction and absolute discretion
(a) to grant parole to an offender;
(b) to terminate or to revoke the parole or statutory release of an offender, whether or not the offender is in custody under a warrant of apprehension issued as a result of the suspension of the parole or statutory release;
(c) to cancel a decision to grant parole to an offender, or to cancel the suspension, termination or revocation of the parole or statutory release of an offender;
. . .
147. (1) An offender may appeal a decision of the Board to the Appeal Division on the ground that the Board, in making its decision,
(a) failed to observe a principle of fundamental justice;
(b) made an error of law;
(c) breached or failed to apply a policy adopted pursuant to subsection 151(2) ;
(d) based its decision on erroneous or incomplete information; or
(e) acted without jurisdiction or beyond its jurisdiction, or failed to exercise its jurisdiction.
Canadian Charter of Rights and Freedoms
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.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
III. Issues
20 The primary issue raised on this appeal is whether or not the National Parole Board is a "court of competent jurisdiction" for the purpose of making an order excluding relevant evidence under s. 24(2) of the Charter . If the Board is not a court of competent jurisdiction, a secondary issue arises, namely, what practice the Board should follow when faced with evidence gathered in circumstances which could violate an applicant's Charter rights.
IV. Analysis
A. Is the National Parole Board a "Court of Competent Jurisdiction"?
21 In my view, the National Parole Board is not a court of competent jurisdiction within the meaning of s. 24 of the Charter . I have arrived at this conclusion based on a review of previous decisions of this Court, as well as on an examination of the basic structure and function of the Parole Board.
22 Previous decisions of this Court have considered the definition of the phrase "court of competent jurisdiction" in s. 24 of the Charter . In Mills v. The Queen, [1986] 1 S.C.R. 863, for example, the Court was faced with the issue of whether or not a preliminary inquiry judge was a court of competent jurisdiction within the meaning of s. 24 . Although Lamer J. (as he then was) disagreed with the majority on the final disposition of that case, a majority of the Court accepted Lamer J.'s definition of a "court of competent jurisdiction" (at p. 890):
A court of competent jurisdiction in an extant case is a court that has jurisdiction over the person, the subject matter and has, under the criminal or penal law, jurisdiction to grant the remedy;
Subsequent decisions of this Court have reaffirmed the three-tiered test of Mills: see for example Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, and Tétreault-Gadoury v. Canada (Employment and Immigration Commission), [1991] 2 S.C.R. 22. In each case it was held that a court or tribunal will only be a "court of competent jurisdiction" where the body in question has jurisdiction over the parties, the subject matter, and the remedy sought by the complainant.
23 Most recently, this Court applied the three-tiered test of Mills in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929. Writing for a majority of the Court, McLachlin J. made the following observations (at pp. 962-63):
It is thus Parliament or the Legislature that determines if a court is a court of competent jurisdiction; as McIntyre J. puts it [in Mills], the jurisdiction of the various courts of Canada is fixed by Parliament and the Legislatures, not by judges. Nor is there magic in labels; it is not the name of the tribunal that determines the matter, but its powers. (It may be noted that the French version of s. 24(1) uses "tribunal" rather than "cour".) The practical import of fitting Charter remedies into the existing system of tribunals, as McIntyre J. notes, is that litigants have "direct" access to Charter remedies in the tribunal charged with deciding their case.
It follows from Mills that statutory tribunals created by Parliament or the Legislatures may be courts of competent jurisdiction to grant Charter remedies, provided they have jurisdiction over the parties and the subject matter of the dispute and are empowered to make the orders sought. [Emphasis added.]
Clearly then, decisions of this Court have established that jurisdiction over the parties, the subject matter and the remedy are necessary conditions for a statutory tribunal to be considered a court of competent jurisdiction within the meaning of s. 24 .
24 Even assuming that the Parole Board has jurisdiction over the parties and the subject matter, I am satisfied, on the basis of (i) the structure and function of the Board, and (ii) the language of the Board's constituting statute, that it is not empowered to make the order sought.
25 The Parole Board acts in neither a judicial nor a quasi-judicial manner: Mitchell v. The Queen, [1976] 2 S.C.R. 570, at p. 593. The elements of a parole hearing are described by David Cole and Allan Manson in Release From Imprisonment (1990). The authors point out that several elements of the hearing distinguish Parole Board proceedings from those which take place before a traditional court. For example, counsel appearing before the Parole Board serve an extremely limited function. According to Cole and Manson (at p. 428):
Although counsel is present as an advocate, since the hearing is inquisitorial there is no one against whom counsel can act as an adversary. Indeed, counsel should recall throughout that as far as the Board is concerned, the only occasion on which he may speak, as outlined in the Regulation, is at the end of the hearing when he is given an opportunity to address the Board on behalf of the client.
In addition, the traditional rules of proof and evidence do not apply in post-suspension proceedings before the Board. As Cole and Manson point out (at p. 431):
While the Board will consider legal defences or mitigating circumstances where a new charge has been laid, in the post-suspension hearing context Board members do not regard themselves as constrained by the formal rules of the criminal law respecting the admissibility of evidence, the presumption of innocence, or the necessity for proof beyond a reasonable doubt.
Other differences between parole hearings and more traditional court proceedings include (1) the Board lacks the power to issue subpoenas, (2) "evidence" is not presented under oath, and (3) the panel presiding over the hearing may have no legal training.
26 In the decision currently under review, the Appeal Division of the Board described its function in the following terms:
The function of the Board at a post-suspension review is quite distinct from that of the courts. The Board must decide whether the risk to society of [the respondent's] continued conditional release is undue. In making that determination, the Board will review all information available to it, including any information indicating a return to criminal activity in the community. This applies whether or not the charges in court have been withdrawn, stayed or dismissed.
Clearly then, the Parole Board does not hear and assess evidence, but instead acts on information. The Parole Board acts in an inquisitorial capacity without contending parties -- the state's interests are not represented by counsel, and the parolee is not faced with a formal "case to meet". From a practical perspective, neither the Board itself nor the proceedings in which it engages have been designed to engage in the balancing of factors that s. 24(2) demands.
27 In the risk assessment function of the Board, the factors which predominate are those which concern the protection of society. The protection of the accused to ensure a fair trial and maintain the repute of the administration of justice which weighs so heavily in the application of s. 24(2) is overborne by the overriding societal interest. In assessing the risk to society, the emphasis is on ensuring that all reliable information is considered provided it has not been obtained improperly. As stated by Dickson J., as he then was, in R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 414, in relation to sentencing proceedings:
One of the hardest tasks confronting a trial judge is sentencing. The stakes are high for society and for the individual. Sentencing is the critical stage of the criminal justice system, and it is manifest that the judge should not be denied an opportunity to obtain relevant information by the imposition of all the restrictive evidential rules common to a trial. Yet the obtaining and weighing of such evidence should be fair. A substantial liberty interest of the offender is involved and the information obtained should be accurate and reliable.
28 These principles apply a fortiori to proceedings before the Parole Board in which the subject has already been tried, convicted and sentenced. As stated by the Supreme Court of the United States in Morrissey v. Brewer, 408 U.S. 471 (1972), at p. 489:
We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.
29 Like the basic structure and function of the Parole Board, the language of the Board's enabling statute makes it clear that the Board lacks the ability or jurisdiction to exclude relevant evidence. The language of the Corrections and Conditional Release Act confers on the Board a broad inclusionary mandate. Not only is it not bound to apply the traditional rules of evidence, but it is required to take into account "all available information that is relevant to a case". No mention is made of any power to apply exclusionary rules of evidence. Indeed, such a provision would conflict with its duty to consider "all available information that is relevant".
30 I conclude from the foregoing that the Board does not have jurisdiction over the remedy sought. It is not, therefore, a court of competent jurisdiction within the meaning of s. 24 of the Charter .
31 I am supported in this conclusion by the decisions of the United States circuit courts. The U.S. Supreme Court has not specifically dealt with the applicability of the exclusionary rule to parole proceedings, although the logical extension of the statement in Morrissey to which I refer above would suggest that the rule does not apply. The issue has been dealt with by ten of the federal circuit courts. Except for the Fourth Circuit, all have held the rule inapplicable. In the Fourth Circuit, which is the exception, the Court of Appeals refused to apply the exclusionary rule in state probation proceedings. See Grimsley v. Dodson, 696 F.2d 303 (1982). One circuit, the Second Circuit, admits of an exception in the case of warrantless searches.
32 In United States v. Winsett, 518 F.2d 51 (9th Cir. 1975), it was held that a board's mandate to consider "all reliable evidence" was inconsistent with allowing the board to exclude relevant evidence. The statement in Pratt v. United States Parole Commission, 717 F.Supp. 382 (E.D.N.C. 1989) is typical of the reasoning in these cases (at p. 387):
. . . this parole revocation proceeding is a far cry from a full blown criminal prosecution. Constitutional protections vindicated by the exclusionary rule do not apply with full force in the minimum due process environment of the parole revocation hearing. Societal costs thought worthy of paying for the operation [of] the rule have already been exacted. Nothing is served by exacting that full measure of costs a second time. The very special needs of supervision . . . would be sacrificed if parole authorities were prohibited from weighing the full extent of petitioner's conduct by reason of the exclusionary rule. The parole revocation decision must meet the preponderance of proof standard . . . after those tenets of minimum due process have been followed. Nowhere does the beyond-a-reasonable-doubt burden apply. The right to a trial by jury does not apply. The parolee does not even enjoy the right to a judicial decision maker. Neither, in my view, does a parolee have the right to insist on strict adherence to fourth amendment standards. And, for the reasons set out above, in my view the exclusionary rule does not apply either.
See also United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970), and United States v. Bazzano, 712 F.2d 826 (3d Cir. 1983). In each case, the courts have held that policy considerations favour denying parole or probation boards the authority to