Date: 20050831
Docket: T-247-05
Citation: 2005 FC 1188
Ottawa, Ontario, August 31, 2005
PRESENT: THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
JACQUES RICE
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
[1] June 5, 2004, was a bad day for Mr. Rice, a parolee. He missed his 9:00 p.m. curfew for a number of reasons, including that his car broke down and that he believed he was having a heart attack.
[2] He arrived at his girlfriend's (ex-sister-in-law's) house, sweating and suffering from chest pain, after having a problem with his car's suspension. Frightened by his appearance, his girlfriend called an ambulance to take him to Emergency. Before leaving for the hospital, Mr. Rice asked his girlfriend to call his halfway house to inform staff that he would miss his curfew because of his medical condition.
[3] As an inmate on parole, Mr. Rice had to observe a number of conditions until his sentence expired, one being that he not consume intoxicants. He was also required to check into a halfway house in which he was residing, before 9:00 p.m.
[4] After Mr. Rice failed to return to the halfway house by 9:00 p.m. on June 5, a suspension warrant was issued.
[5] During the investigation, the correctional officer contacted the hospital to confirm Mr. Rice's statement concerning the evening in question. A hospital employee corroborated Mr. Rice's story but added that the Mr. Rice had admitted to drinking a few beers. The employee also commented that Mr. Rice's breath smelled of alcohol.
[6] Two hearings were held into the incidents of June 5. At the end of the first hearing, it was decided that a parole suspension warrant should be executed on June 6. The decision was based on a number of factors, including Mr. Rice's attitude and earlier suspicions concerning his alcohol consumption, leading to two urine analyses, which had turned out negative. The information received from an anonymous hospital source concerning Mr. Rice's alcohol consumption during the evening in question was also considered.
[7] Mr. Rice was never told the source of the information or even the occupation of the individual concerned.
[8] Mr. Rice strongly objected to the accusation that he had been drinking and even offered the results of his blood tests taken in Emergency.
[9] He appealed the decision to issue a parole suspension warrant. The decision was upheld on September 1, 2004, in a decision by the National Parole Board, Appeal Division ("N.P.B.").
[10] In its decision, the N.P.B. paid particular attention to Mr. Rice's objections to a decision founded on hearsay from an anonymous source. Mr. Rice had relied on Mooring v. Canada (National Parole Board), [1996] 1 S.C.R. 75.
ISSUE
[11] In the respondent's view, in assessing the risk posed by Mr. Rice, the Court must base its decision solely on the applicable standard of review.
[12] Mr. Rice proposes something quite different. In his opinion, the Court must ask the following question: Was there a breach of duty of procedural fairness during the hearing? If the Court decides that there was not, must it determine the applicable standard of review?
[13] Not only do I agree with Mr. Rice, but also I find that , in the case at bar, the procedure was unfair. Therefore, there is no need to rule on the applicable standard of review.
[14] The matter is referred back to the N.P.B. for rehearing and redetermination.
ANALYSIS
[15] I shall begin with Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539. At paragraph 127, Binnie J. cites Le Dain J. in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at page 653:
14. . . . This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual . . . .
[16] In C.U.P.E., supra, Binnie added his support in paragraph 102:
The content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations.
[17] In the present case, I must examine the manner in which the N.P.B. went about making its decision. If it was not done fairly, I need not examine the result.
[18] In paragraph 23 of Cardinal, cited supra, Le Dain J. stated the following:
[A] failure to afford a fair hearing, which is the very essence of the duty to act fairly, can never of itself be regarded as not of "sufficient substance" unless it be because of its perceived effect on the result or, in other words, the actual prejudice caused by it. If this be a correct view of the implications of the approach of the majority of the British Columbia Court of Appeal to the issue of procedural fairness in this case, I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
[19] In the instant case, the N.P.B. refused to consider the results of the blood tests. There is no way of knowing how the N.P.B. would have ruled if it had considered the blood samples. Mr. Rice was twice forced to give urine samples because he was suspected of having consumed alcohol. Both results turned out negative.
[20] The following is an excerpt from Mr. Rice's examination at his first hearing:
[TRANSLATION]
BOARD MEMBER:
Q- Now, was the nurse or, in any case, the staff member who smelled alcohol on your breath, not telling the truth?
A- I don't know, sir. I have papers here from the hospital . . .
Q- Um-hum.
A- . . . the diagnosis, the blood samples that were taken.
Q- Um-hum.
A- As for me, I don't know how to read this, any of this. If you are familiar with this, I don't know, if you want to get them checked. I'll bring them to you so you can have them checked, if you like. They're all blood samples that were taken there. As for whether there's any alcohol in them [inaudible], there isn't.
[21] It is not clear whether the result would have been the same if Rice had been treated fairly (Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202).
[22] Mooring, supra, is one of a series of decisions speaking to fairness. Despite the fact that the Supreme Court ruled that the N.P.B. was not a court covered by the Charter and that it was not subject to the rules of evidence, this decision referred to Cardinal, supra, as a basis for the principle whereby:
34. . . . a prison director was required to act fairly in determining whether or not to segregate a prisoner from the rest of the prison population . . . . Clearly, the Parole Board's decision to revoke a parolee's conditional release has a profound effect on the rights of the parolee. The Board's decision will conclusively determine whether the applicant is released into the community or retained in the confines of a prison or penitentiary. As a result, in making that decision to grant or revoke parole, the Board is required to act fairly.
. . .
36. What is the content of the Board's "duty to act fairly"? The content of the duty of fairness varies according to the structure and the function of the board or tribunal in question. In the parole context, the Parole Board must ensure that the information upon which it acts is reliable and persuasive . . . . Wherever information or "evidence" is presented to the Board, the Board must make a determination concerning the source of that information, and decide whether or not it would be fair to allow the information to affect the Board's decision.
37. In determining whether or not it would be fair to consider a particular piece of information, the Board will often be guided by decisions of the courts regarding the exclusion of relevant evidence . . . .
[23] There is no need for me to determine whether it was appropriate for the N.P.B. to consider the hearsay evidence if I assume that the same (anonymous) person would have been available to give testimony and be cross-examined.
[24] However, it is unfair to exclude and refuse to consider a scientific analysis conducted at the hospital that might have exonerated Mr. Rice. While we cannot be certain that this evidence would have provided information about Mr. Rice's drinking, if the evidence is not taken into consideration, we will never know.
ORDER
The decision of the National Parole Board, Appeal Division, dated January 17, 2005, is set aside. The matter is referred to a differently constituted panel for rehearing and determination.
"Sean Harrington"
Judge
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-247-05
STYLE OF CAUSE: JACQUES RICE
AND
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JULY 20, 2005
AND ORDER: HARRINGTON J.
DATED: AUGUST 31, 2005
APPEARANCES:
Daniel Royer FOR THE APPLICANT
Dominic Guimond FOR THE RESPONDENT
SOLICITORS OF RECORD:
Labelle, Boudrault, Côté et Assoc.
Montréal, Quebec FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT