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 exclude relevant information. In my view, many of these policy considerations are equally relevant in the Canadian context. As a result, I conclude that the Parole Board is not a court of competent jurisdiction for the purposes of excluding relevant evidence under s. 24(2) of the Charter .
B. Procedures Where Evidence is Gathered Improperly
33 Having found that the National Parole Board is not a court of competent jurisdiction within the meaning of s. 24 of the Charter , it remains to be determined what procedures the Board must follow when faced with evidence that has been gathered in a manner violating the rights of the parolee.
34 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. For example, in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, it was held that a prison director was required to act fairly in determining whether or not to segregate a prisoner from the rest of the prison population. Writing for a unanimous Court, Le Dain J. held (at p. 653) that:
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: Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board (No. 2), [1980] 1 S.C.R. 602; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735.
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.
35 The duty of the Parole Board to act fairly can also be found in the Board's constituting statute, the Corrections and Conditional Release Act . For example, s. 4(g) of that Act provides that all correctional decisions must be "made in a forthright and fair manner, with access by the offender to an effective grievance procedure". Similarly, s. 101(f) of the Act provides that the Parole Board must pursue a "fair and understandable conditional release process". Finally, s. 147(1)(a) of the Act provides that an appeal of the Board's decision lies in all cases where the Board "failed to observe a principle of fundamental justice". Clearly, these provisions impose upon the Board a duty to act in accordance with the principles of fairness.
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. To take an extreme example, information extracted by torture could not be considered reliable by the Board. It would be manifestly unfair for the Board to act on this kind of information. As a result, the Board would be under a duty to exclude such information, whether or not the information was relevant to the decision. 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. For instance, where incriminating statements are obtained from the offender, the law of confessions based on an admixture of reliability and fairness will be pertinent although not binding. The Board may, in appropriate circumstances, conclude that reliance on a coerced confession is unfair. Decisions concerning s. 24(2) of the Charter will also be relevant to the Board's final decision. However, cases decided under s. 24(2) should not be determinative of the Board's decision to exclude relevant information based on the principles of fairness. Obviously, different considerations will often apply in the parole context. For example, s. 101 (a) of the Corrections and Conditional Release Act requires "that the protection of society be the paramount consideration in the determination of any case". This will accordingly be a guiding principle where the Board is required to rule on the admissibility of a particular piece of information. The Board's expertise and experience concerning the protection of society will aid the Board in arriving at a decision. Should the Board fail to abide by the principles of fairness in making those decisions, an appeal lies to the Appeal Division under s. 147(1) (a) of the Corrections and Conditional Release Act . The Board's decision is also subject to judicial review.
38 As a statutory tribunal, the Board is also subject to the dictates of s. 7 of the Charter . In this regard, it must comply with the principles of fundamental justice in respect to the conduct of its proceedings. This does not mean that it must possess or exercise a power to exclude evidence that has been obtained in a manner that contravenes the Charter . If this were so, it would tend to make the inclusion of s. 24(2) of the Charter superfluous. 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. If the myriad of statutory tribunals that have traditionally been obliged to accord nothing more than procedural fairness were obliged to comply with the full gamut of principles of fundamental justice, the administrative landscape in the country would undergo a fundamental change. The statement in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, to the effect that the principles of fundamental justice involve more than natural justice meant that the Court was empowered in appropriate circumstances to invalidate substantive law and was not limited to judicial review of the procedural practices of a statutory body.
39 It is a basic tenet of our legal system that the rules of natural justice and procedural fairness are adjusted by reference to the context in which they are administered. This is one of the basic tenets of our legal system to which Lamer J. referred in Re B.C. Motor Vehicle Act as the source of the principles of fundamental justice. In my opinion, adherence by the Board to the practice and procedures outlined above constitutes full compliance with the principles of fundamental justice and, therefore, with s. 7 of the Charter .
C. Disposition
40 I would allow this appeal on the ground that the National Parole Board is not a court of competent jurisdiction. I would accordingly set aside the judgment of the British Columbia Court of Appeal. Ordinarily, I would remit the respondent's case to the Parole Board, to be dealt with in accordance with these reasons. However, since the respondent's sentence has already expired, the Parole Board is functus officio.
The reasons of McLachlin and Major JJ. were delivered by
Major J. (dissenting) --
I. Introduction
41 This appeal raises a narrow issue not yet determined by this Court. Specifically, the appeal asks whether the National Parole Board is a "court of competent jurisdiction" for the purpose of determining whether to exclude evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms when conducting parole hearings pursuant to the Corrections and Conditional Release Act , S.C. 1992, c. 20 . The Court must decide whether the National Parole Board, in determining or revoking parole eligibility, has the jurisdiction to exclude from its consideration evidence obtained in an unconstitutional manner where it is established that, having regard to all the circumstances, the admission of that evidence would bring the administration of justice into disrepute.
42 I have read the reasons of my colleague Justice Sopinka which set out the facts and statutory provisions relevant to this appeal. With respect, I do not agree with his conclusion that the National Parole Board lacks the jurisdiction under s. 24(2) to exclude evidence which has been obtained in a manner that infringes Charter rights. Nor do I agree that more than a decade after the introduction of the Charter , the application of the common law doctrine of procedural fairness by the Parole Board is sufficient to protect the constitutional rights of parolees.
43 In my view, the National Parole Board is a "court of competent jurisdiction" within the meaning of s. 24 of the Charter . I have reached this conclusion based on an examination of the previous decisions of this Court, the statutory provisions which govern the Parole Board and the application of basic Charter principles.
44 As a "court of competent jurisdiction" for the purposes of granting an exclusionary remedy under s. 24(2), the National Parole Board can determine whether to exclude from its consideration information which was obtained in contravention of Charter rights where the admission of such evidence would bring the administration of justice into disrepute. As a result, in a parole determination or revocation hearing, the parolee has a direct opportunity to raise a breach of Charter rights and to seek an effective remedy.
45 The National Parole Board has the jurisdiction and the responsibility to consider whether a breach of Charter rights has occurred according to the legal tests established in the jurisprudence of this Court for determining violations of these rights.
46 The National Parole Board must then determine, under s. 24(2), whether the admission of the evidence in a parole granting or revocation hearing would bring the administration of justice into disrepute. In the context of the National Parole Board, the administration of justice means the administration of the parole process.
47 Although the National Parole Board has the jurisdiction to exclude evidence, it also has a mandate to admit a broad range of evidence in keeping with its paramount goal of protecting the public from recidivist offenders. In light of its legislated mandate, it will be an unusual case where the National Parole Board will exclude evidence under the s. 24(2) test of bringing the administration of the parole process into disrepute.
II. Analysis
A. The Case Law
48 The first case which considered the phrase "court of competent jurisdiction" in the context of s. 24 of the Charter is Mills v. The Queen, [1986] 1 S.C.R. 863. In that case, the Court was unanimous in concluding that a preliminary inquiry judge is not a court of competent jurisdiction for the purposes of issuing the remedy of a stay under s. 24(1) of the Charter where there was an alleged breach of the accused's right to be tried within a reasonable time guaranteed by s. 11( b ) .
49 The Court was also unanimous that the trial judge would be a court of competent jurisdiction for this purpose. Lamer J. (as he then was) proposed (Dickson C.J. and Wilson J. concurring) that a s. 11(b) violation could be finally determined in a pre-trial hearing by a judge of the court where the trial would be heard. The majority of the seven-member panel rejected this view on the grounds that the procedural provisions of the Criminal Code did not contemplate this sort of interlocutory application and that the Charter rights of the accused were not prejudiced by waiting until trial for a final determination. La Forest J. concurring with the majority noted at p. 971:
It should be obvious from the foregoing remarks that I am sympathetic to the view that Charter remedies should, in general, be accorded within the normal procedural context in which an issue arises. I do not believe s. 24 of the Charter requires the wholesale invention of a parallel system for the administration of Charter rights over and above the machinery already available for the administration of justice.
50 Although Lamer J. was in dissent on the availability of a pre-trial remedy for some Charter violations, his reasons in Mills have been substantially approved and adopted. Of particular relevance to this appeal, McIntyre J. for the majority of the Court accepted Lamer J.'s definition of a "court of competent jurisdiction" as one which is granted by its constituent legislation power over the person, the subject matter and the remedy.
51 Also adopted was the vision of Charter rights enunciated by Lamer J. in Mills that in order for the Charter to be effective there must be a remedy available where there has been a breach. In the context of s. 24, Lamer J. (at p. 894) described this as "the basic proposition that there should always be a court of competent jurisdiction to award such relief as is just and appropriate in the circumstances" (emphasis in original). Lamer J. defined the role and purpose of s. 24 in establishing the right to a remedy as the foundation stone for effectively enforcing Charter rights and ensuring that the rights guaranteed by the Charter will act vigorously to protect Canadians (at pp. 881-82):
"Court of competent jurisdiction" is not defined in the Charter . Yet its interpretation is central to the scope and effectiveness of s. 24. In determining the meaning of that term, the purpose of the section, which, in my view, is succinctly expressed in the marginal note, must be ever present: the "enforcement of guaranteed rights and freedoms". It is that purpose, the provision of an enforcement mechanism, which above all else ensures that the Charter will be a vibrant and vigorous instrument for the protection of the rights and freedoms of Canadians.
Section 24(1) establishes the right to a remedy as the foundation stone for the effective enforcement of Charter rights. This is consistent with Article 8 of the Universal Declaration of Human Rights (G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948)) and with Article 2(3) of the International Covenant on Civil and Political Rights (G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966)).
Article 8 of the Universal Declaration of Human Rights states:
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 2(3) of the International Covenant on Civil and Political Rights states:
(3) Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
. . .
I am of the view that a person whose Canadian Charter rights have been infringed or denied has the right to obtain the appropriate and just remedy under the circumstances. A corollary which flows from this is the fundamental principle that there must always be a court available to grant, not only the remedy, but the remedy which is the appropriate and just one under the circumstances. [Italics in original; underlining added.]
52 I agree with this description of Charter rights and the role of s. 24 in guaranteeing that Charter rights are actually enforced. If the Charter is to remain a "vibrant and vigorous instrument for the protection of the rights and freedoms of Canadians" there must be an effective remedy where there has been a violation.
53 Following Mills, a trilogy of cases determined that where the enabling statute grants the power to determine questions of law, an administrative tribunal has the power and responsibility not to apply provisions of that enabling statute which are incompatible with the Charter : 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. In these cases the Court affirmed the correctness of the three-pronged test enunciated by Lamer J. in Mills for determining a "court of competent jurisdiction": jurisdiction over the parties, the subject matter and the remedy sought by the complainant. It was not necessary, however, to determine whether the tribunals in question were courts of competent jurisdiction under s. 24 of the Charter . The power and responsibility not to apply statutory provisions which are unconstitutional was found to flow from s. 52(1) of the Constitution Act, 1982 , which declares every law which is inconsistent with the Charter to be of no effect.
54 Of particular relevance to this appeal are the comments of La Forest J., who wrote the majority judgment in each of the trilogy of cases, about the advantages of having constitutional issues determined by an administrative tribunal. This question is discussed in detail in Douglas/Kwantlen Faculty Assn. v. Douglas College. At pages 603-4 La Forest J. notes that the primary advantage of having tribunals determine constitutional questions 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:
. . . if there are disadvantages to allowing arbitrators or other administrative tribunals to determine constitutional issues arising in the course of exercising their mandates, there are clear advantages as well. First and foremost, of course, is that the Constitution must be respected. The citizen, when appearing before decision-making bodies set up to determine his or her rights and duties, should be entitled to assert the rights and freedoms guaranteed by the Constitution. [Emphasis added.]
55 In R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 639, McLachlin J. noted that it is this right of a Canadian citizen to rely on Charter guarantees when there is a final determination of "rights and duties" which helps to explain why the arbitrator in Douglas College was held to be able to determine constitutional questions but the preliminary inquiry judge in Mills was not:
The position of a judge or magistrate on a preliminary inquiry is readily distinguished from the position of the arbitrator in Douglas College. The legislation governing the arbitrator in that case conferred on him wide powers to decide both questions of fact and law and to finally resolve the dispute between the parties. That task could not be achieved without deciding the Charter issue. As La Forest J. put it in Douglas College, at p. 604: "The citizen, when appearing before decision-making bodies set up to determine his or her rights and duties, should be entitled to assert the rights and freedoms guaranteed by the Constitution." The contrary is true for a judge on a preliminary inquiry, whose only task is to determine whether prosecution in other proceedings is warranted. The rights of the accused need not and should not be resolved at this initial stage. The lack of power in a preliminary inquiry judge to decide constitutional questions does not prevent an accused from asserting his or her Charter rights; it merely defers the process until the accused is before the decision-making body charged with the task of fully determining the accused's "rights and duties" -- the trial court.
Thus, the decisions in the trilogy of cases are consistent with the principle enunciated by Lamer J. in Mills that where there is a Charter right there must also be a Charter remedy.
56 In Douglas College, La Forest J. also noted a number of other advantages which flow from allowing tribunals to determine constitutional questions. By raising Charter issues before the tribunal, the Charter issue can be dealt with in the context in which it arises without necessitating a 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. Also the expertise and specialized competence of the tribunal can be of invaluable assistance in constitutional interpretation in order to ensure the primacy of the Constitution.
57 In the recent case of Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, this Court addressed the question of whether an administrative tribunal could be a court of competent jurisdiction for the purposes of granting a remedy under s. 24 of the Charter . The issue in that case was whether a labour arbitrator had the jurisdiction to award damages under s. 24 of the Charter for surveillance by the employer which allegedly breached the rights guaranteed by ss. 7 and 8 . The majority held that a labour tribunal is a court of competent jurisdiction for the purpose of granting damages pursuant to s. 24.
58 In holding that a labour tribunal is a court of competent jurisdiction, McLachlin J. for the majority applied the three-pronged test for the definition of a court of competent jurisdiction established in Mills and relied on the advantages of having tribunals decide constitutional issues which are set out in Douglas College. McLachlin J. noted that the question of whether a tribunal is a court of competent jurisdiction is answered by examining the enabling statute since it is Parliament and not judges who establish jurisdiction. She also held that there is no magic in labels and that the fact that a body is labelled a "tribunal" rather than a "court" is not determinative. At pages 962-63 she concluded:
It is thus Parliament or the Legislature that determines if a court is a court of competent jurisdiction; as McIntyre J. puts it, 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.
59 It is also important to note that the majority of the Court in Weber rejected the argument that only a court of law in the traditional sense with legally trained judges should be regarded as a court of competent jurisdiction. Iacobucci J., in dissent, summarized the view which was not accepted at p. 942:
In short, the choice of the word "court" in s. 24(1) reflects an intention to confer the ability to decide questions of remedies for Charter violations on those institutions which are conceptually "courts". It is the characteristics of a "court": the rules of procedure and evidence, the independence and legal training of its judges, the possibility of hearing from a third party intervener such as an Attorney General or an amicus curiae, which make it the most suitable forum to hear a s. 24(1) application.
60 In my opinion, the recent decision of this Court in Weber is correct and is consistent with earlier case law. While the trilogy of tribunal cases did not decide the issue of whether tribunals are courts of competent jurisdiction for the purposes of s. 24, it did decide that where a tribunal has the power to consider questions of law, it can and must also make determinations about the constitutional validity of the provisions of its enabling statute. In those cases this Court clearly rejected the view that the lack of legal training on the part of tribunal members precludes them from making constitutional determinations. As La Forest J. noted in Cuddy Chicks, at pp. 16-17:
It must be emphasized that the process of Charter decision making is not confined to abstract ruminations on constitutional theory. In the case of Charter matters which arise in a particular regulatory context, the ability of the decision maker to analyze competing policy concerns is critical. Therefore, while Board members need not have formal legal training, it remains that they have a very meaningful role to play in the resolution of constitutional issues. The informed view of the Board, as manifested in a sensitivity to relevant facts and an ability to compile a cogent record, is also of invaluable assistance.
61 The considerations which animated this Court's decisions in the trilogy of tribunal cases apply with equal force when considering whether a tribunal has the jurisdiction to grant Charter remedies under s. 24. Of primary importance is the ability of the citizen to rely upon and assert Charter rights in a direct manner in the normal procedural context in which the issue arises.
62 It is also axiomatic to the earlier case law that in order to protect the vibrancy and vigour of Charter protections, the citizen must have access to a meaningful remedy for Charter violations where there is to be a final determination of his or her rights and duties.
63 Given that administrative tribunals, such as the Parole Board in this case, have jurisdiction to impose punitive sanctions, it would be an unusual result if they lacked the ability to grant individuals Charter remedies, not at large but within the parameters of their legislated jurisdiction.
64 There is no reason in principle why any of the practical advantages enunciated by La Forest J. in the trilogy should 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. If anything, tailoring a specific Charter remedy for a specific applicant before a tribunal is more suited to a tribunal's special role in determining rights on a case by case basis in the tribunal's area of expertise. It has less serious ramifications than determining that a statutory provision will not be applied on Charter grounds.
65 It is worth emphasizing that this Court in Weber explicitly held that there is no magic in labels and that a tribunal can be a court of competent jurisdiction although it is not a "court" in the most literal sense of the word. This holding is consistent with earlier case law and the decisions of other courts: R. v. Garrett, [1907] 1 K.B. 881, at p. 886; Re Nash and the Queen (1982), 70 C.C.C. (2d) 490 (Nfld. Prov. Ct.), at p. 494; Re United Nurses of Alberta, Local 115 and Foothills Provincial General Hospital Board (1987), 40 D.L.R. (4th) 163 (Alta. Q.B.), at pp. 166-67; R. v. Toker (1984), 11 D.L.R. (4th) 456 (Alta. C.A.).
66 The English word "court" is also capable of a broad interpretation even on a plain and literal reading of that word. For instance the Chambers English Dictionary (7th ed. 1988) defines a "court" as "any body of persons assembled to decide causes" and the Concise Oxford Dictionary (8th ed. 1990) defines it as an "assembly of judges or other persons acting as a tribunal". Thus a "court" in its ordinary sense is broad enough to encompass a tribunal. It is notable that the Charter does not limit the word court by some phrase such as "court of law", "court of justice" or "superior court". Rather, the Charter uses the broad and expansive term "court of competent jurisdiction". As Chrumka J. noted in the United Nurses of Alberta case at p. 167, "[t]he phrase `court of competent jurisdiction' is not unknown to the law and is to be given a broad construction". As early as 1907, Collins M.R. in Garrett rejected a narrow approach to the phrase "court of competent jurisdiction" and held at p. 886:
. . . the expression "Court of competent jurisdiction" seems to me to be only a compendious expression covering every possible Court which by enactment is made competent to entertain a claim . . .
67 McLachlin J. observed in Weber that it is notable that the French version of s. 24 uses the word "tribunal" rather than "cour" in s. 24. The significance of the choice of the word "tribunal" in the French can be more fully appreciated by comparing the choice of this word in s. 24 to the choice of wording in s. 11( d ) of the Charter . The English text of s. 11( d ) refers to "an independent and impartial tribunal", and the French uses the same word as in s. 24, "un tribunal indépendant et impartial". This demonstrates that the drafters of the Charter used the French word "tribunal" in a sense which was broad enough to encompass both the English "court" and the English "tribunal".
68 The broad interpretation of s. 24 in Weber allows for the French word "tribunal" to be interpreted in a manner consistent with its use in other provisions of the Charter , and is mindful of this Court's frequent admonition to interpret Charter provisions in light of one another. As Lamer J. stated in Dubois v. The Queen, [1985] 2 S.C.R. 350, at p. 365 (citing P. A. Côté, The Interpretation of Legislation in Canada (1984), at p. 236), "[e]very component [of the Charter ] contributes to the meaning as a whole". The Weber approach is also consistent with giving the Charter a "broad and liberal interpretation", a feature which has animated the Charter jurisprudence of this Court from its conception: see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, per Dickson J.
69 In summary, the previous cases of this Court establish that:
1.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;
2.s. 24 is to be interpreted in such a way that there will always be a court of competent jurisdiction to award such relief as is just and appropriate in the circumstances where there is a final determination of the rights and duties of the citizen;
3.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;
4.the test for a court of competent jurisdiction is whether the enabling statute grants jurisdiction over the parties, the subject matter and the remedy sought; and
5.an administrative tribunal can be a court of competent jurisdiction where it meets this test.
B. Application to this Appeal
(1) Introduction
70 Sopinka J. concludes that even assuming the Parole Board has jurisdiction over the parties and the subject matter he is satisfied that the Board is not empowered to make the order sought. By relying on factors such as the lack of an adversarial process, the lack of formal rules of evidence and the lack of legal training of Parole Board members he finds that the Parole Board is not a court of competent jurisdiction. My colleague resurrects the requirement that a "court of competent jurisdiction" must be a traditional court. The majority of the Court in Weber rejected this view. Moreover, the factors relied on by Sopinka J. have never been accepted as reasons for limiting a tribunal's power to determine constitutional issues.
71 The Weber case is consistent with the prior case law of this Court which holds that the test for a "court of competent jurisdiction" is to be determined by an examination of the statute to see whether the tribunal in question has been granted jurisdiction over the parties, the subject matter and the remedy sought. It is therefore necessary to turn to an examination of the statute which governs the National Parole Board to determine whether it meets this tripartite test.
(2) The Mills Test
72 It is indisputable that the National Parole Board has jurisdiction over the party and the subject matter. The party is an offender eligible for parole and the subject matter is the granting or revocation of parole. Section 107(1) of the Corrections and Conditional Release Act grants the Parole Board the exclusive jurisdiction and absolute discretion to finally determine whether parole should be granted or revoked:
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;
73 The more difficult question on this appeal is whether the National Parole Board has been granted jurisdiction over the remedy sought. Some care should be taken to appropriately define the remedy sought by the respondent in this case.
74 As Lambert J.A. pointed out in the reasons for the majority in the British Columbia Court of Appeal ((1994), 93 C.C.C. (3d) 415), the test would not lead anywhere if the remedy was considered to be applying the Charter in order to exclude evidence at a parole hearing: that remains the question and not the answer. The majority of this Court in Weber rejected the view that enabling legislation must expressly confer the jurisdiction to grant a Charter remedy before this stage of the test is met. Such an approach would require that any adjudicative bodies pre-existing the Charter would be barred from applying it unless their constituting statutes were amended. This view is clearly untenable and inconsistent with the result in Mills. Provincial courts are a ready example of bodies entitled to grant Charter remedies without their constituting statutes being amended.
75 On the other hand, I would respectfully reject the definition of remedy chosen by Lambert J.A., who held (at p. 437) that "the remedy is the granting of parole". This approach defines the remedy at too great a level of abstraction and seems to mix the remedy and subject matter. I accept the argument of the appellants that to define the remedy in this manner is tantamount to saying that every tribunal which can make an order of some nature has Charter jurisdiction.
76 In my view, the correct approach lies between these two extremes. 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.
77 For example, in Mills the remedy sought under the Charter was a stay of proceedings in order to remedy pre-trial delay. A preliminary inquiry judge is not a court of competent jurisdiction because he does not have the power under the Criminal Code to grant a stay of proceedings. On the other hand, a trial judge has the jurisdiction to grant this sort of remedy and thus is a court of competent jurisdiction although there is no specific legislative authorization in the Criminal Code to grant Charter remedies. Likewise in Weber, a labour arbitration board was found to be a court of competent jurisdiction to award damages under s. 24(1) because an award of damages lies within the sphere of remedies that this kind of board is authorized to grant. A specific legislative jurisdiction to grant Charter damages was not required.
78 In this case the respondent seeks to have evidence excluded under s. 24(2) of the Charter . The remedy sought is the exclusion of evidence. Therefore the final stage in the application of the Mills test is whether the legislation which governs the National Parole Board either expressly or implicitly grants the jurisdiction to exclude evidence. In my view it does.
79 In deciding what information to consider in parole determination deliberations, the National Parole Board must strike a balance between the inclusion and the exclusion of information. Thus, although the Board has the jurisdiction to exclude evidence on a limited number of grounds it also has a broad inclusionary mandate. The Board's statutory obligation to include a broader range of information than would be considered under the traditional rules of evidence is fully in keeping with its role of public protection and as a watchguard against recidivism by parolees.
80 Section 101 provides that the National Parole Board should take into consideration all available information that is relevant to the case:
101. The principles that shall guide the Board and the provincial parole boards in achieving the purpose of conditional release are
. . .
(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;
81 In argument, the appellants emphasized the fact the statute uses the term "information" which is broader than the term "evidence" and my colleague relies on the fact that the Board is not bound by formal rules of evidence. Neither of these considerations resolves the issue of whether the Board is entitled to exclude evidence. Evidence is simply a subset of the term "information" and there may be exclusion beyond that provided for in formal evidentiary rules.
82 In my opinion, the statute expressly contemplates a power to exclude information from its consideration since it restricts the Board to a consideration of relevant information. In Seaboyer, at p. 609, McLachlin J. held that it is a principle of fundamental justice that a finder of fact consider only what is relevant and, with limited exceptions, all that is relevant. She also noted that this relevancy principle underlies the formal rules of evidence:
It is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues. This goal is reflected in the basic tenet of relevance which underlies all our rules of evidence: see Morris v. The Queen, [1983] 2 S.C.R. 190, and R. v. Corbett, [1988] 1 S.C.R. 670. In general, nothing is to be received which is not logically probative of some matter requiring to be proved and everything which is probative should be received, unless its exclusion can be justified on some other ground.
83 The governing statute also requires that the Board exclude evidence which it deems to be unreliable or inaccurate. Section 147(1) (d) of the Corrections and Conditional Release Act provides for an appeal of the Board's decision to the Appeal Division on the ground that the Board "based its decision on erroneous or incomplete information".
84 As noted by Sopinka J. the duty not to consider information which is unreliable or unpersuasive also arises from the common law doctrine of procedural fairness which applies to a statutory tribunal such as the Parole Board: see Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at p. 653. In R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 414, Dickson J., as he then was, stated in relation to sentencing proceedings which, like parole hearings, involve a relaxation of formal evidentiary rules: "A substantial liberty interest of the offender is involved and the information obtained should be accurate and reliable."
85 The governing statute contemplates that the Board must exclude from its consideration any information which is irrelevant or which is unreliable. Thus, although it is not bound by formal evidentiary rules, the Board is bound to observe the two guiding principles which inform the traditional rules of evidence: relevance and reliability. The 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. Therefore, the Board has jurisdiction over the remedy sought by the respondent in this case, and the third stage of the Mills test is met.
(3) The Governing Statute and the Charter
86 The fact that the National Parole Board meets the three requirements of the Mills test is sufficient to establish that the Board is a court of competent jurisdiction to grant a remedy under s. 24 of the Charter . It is worth noting that the governing statute also contemplates that the Board must apply the Charter . Section 147(1) provides:
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);
. . .
87 The legislation requires that the Parole Board has to observe the principles of fundamental justice in making its decision. This echoes the wording of s. 7 of the Charter , which guarantees the right not to be deprived of liberty except in accordance with the principles of fundamental justice.
88 It is appropriate that the Parole Board, which can substantially interfere with a liberty interest by granting, denying or revoking parole, should be required to apply the principles of fundamental justice. The principles of fundamental justice require more than the common law doctrine of procedural fairness relied on by Sopinka J.
89 The legislation also permits review for errors of law, which implicitly recognizes that the Board can determine issues of law. The capacity of a statutory tribunal to decide questions of law has been held by this Court in the trilogy of tribunal cases to be determinative of whether a tribunal can decide Charter issues which arise in the exercise of its statutory mandate.
90 Finally, an appeal is allowed for failure to apply policies adopted under s. 151(2). The policy adopted under s. 151(2) in relation to appeals sets out the mandate of the Appeal Division in terms which require it to ensure compliance with the Charter :
The Appeal Division reviews decisions of the Board, upon the appeal of a decision by the offender pursuant to s. 147(1) of the Corrections and Conditional Release Act . The Appeal Division, through its review process, and decision-making authority, and the issuance of Appeal Division Reports, contributes to the quality of conditional release decisions by ensuring that decisions and decision-making processes are fair and equitable and comply with the legislation, the Charter of Rights and Freedoms, the Board's policies and procedures, and principles of the National Parole Board Mission Statement. [Emphasis added.]
91 The application of the Mills test leads to the conclusion that the Board is a court of competent jurisdiction for the purposes of granting a remedy under s. 24(2) and an examination of the governing statute demonstrates a legislative intention that Charter principles apply to the determination of the liberty interests of parolees. It remains only to consider policy issues.
(4) Policy Considerations
92 As discussed earlier, the policy considerations raised by Sopinka J. (that the Board does not use an adversarial process, that formal rules of evidence do not apply and that not all Board members have legal training) have been rejected by this Court as inadequate reasons for preventing a statutory tribunal from determining constitutional issues. On the other hand, the advantages of having a tribunal decide such issues, set out by La Forest J. in Douglas College, apply in support of recognizing the Parole Board as a court of competent jurisdiction.
93 Recognition of the Parole Board as a court of competent jurisdiction would enable the Charter issue to be dealt with in the context in which it arises without, as previously noted, necessitating an expensive and time-consuming application to a court. The Parole Board's determination would find facts and compile a record for the benefit of a reviewing court. The expertise and specialized competence of the tribunal could be of invaluable assistance in constitutional interpretation particularly on the question of when the admission of unconstitutionally obtained evidence in the parole determination process might bring the administration of justice into disrepute.
94 However the overriding policy consideration which militates in favour of finding that the Parole Board is a court of competent jurisdiction is the fact that the Parole Board has the exclusive jurisdiction to finally determine the liberty interests of a parolee. I agree with Lambert J.A. who concluded that if the Parole Board is not a court of competent jurisdiction then the parolee is deprived of Charter protection with respect to unconstitutionally obtained evidence, at p. 440:
Counsel for the National Parole Board has firmly maintained that the National Parole Board is not a court of competent jurisdiction under s. 24 of the Charter . If he is right, then when the National Parole Board refuses to consider whether to grant the Charter remedy of exclusion of evidence that is relevant and admissible, because it was obtained in the course of a Charter breach, then that refusal cannot be a jurisdictional error or an error in law. Accordingly, on that approach there can be no remedy whatever for a breach of a prisoner's Charter rights leading to a loss of statutory release. The reason is that if the National Parole Board is not a court of competent jurisdiction neither the Supreme Court of British Columbia nor the Federal Court, Trial Division, can say that there was an error in jurisdiction or an error in law in the National Parole Board failing to consider a question that it is not empowered to consider.
That result, on the basis of the reasoning of counsel for the National Parole Board, would put the prisoner beyond the protection of the Charter in relation to evidence improperly obtained.
95 In my view it is wholly inconsistent with the principles of Charter interpretation enunciated by this Court on numerous occasions for a Charter right to exist without a citizen having access to a Charter remedy.
96 If the Charter is to be a robust and vigorous instrument for the protection of the rights of all Canadians and if Charter guarantees are to be meaningful and respected there must be access to a Charter remedy where rights have been violated. The broad and liberal interpretation of the Charter espoused by this Court requires at a minimum respect for what Lamer J. in Mills (at p. 894) termed "the basic proposition that there should always be a court of competent jurisdiction to award such relief as is just and appropriate in the circumstances" (emphasis in original). Access to a remedy should not be denied to a citizen simply because he is already under detention by the state. The Charter's benefits apply to everyone, including prisoners: see Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872.
97 The proposition that there must be a Charter remedy where rights have been violated applies with particular force to a tribunal which has the power to finally determine issues which substantially affect the liberty of an individual. The role of the National Parole Board cannot be compared to that of a preliminary inquiry judge whose only role is to determine whether there is a sufficiency of evidence to proceed to trial. Nor can it be compared to that of a statutory tribunal whose mandate is limited to the granting of civil remedies such as damages. It is much more directly analogous to that of a trial court judge, who, subject to appeal for errors of law or jurisdiction, can finally determine the liberty interest of an individual.
98 Sopinka J. seeks to minimize the impact of finding that the National Parole Board cannot grant a Charter remedy by noting that the parolee still enjoys the protection of the common law guarantee of procedural fairness. With respect, it cannot be assumed that the common law doctrine of procedural fairness is co-extensive with the guarantee of the "principles of fundamental justice" in the Charter which is echoed in the Corrections and Conditional Release Act .
99 Procedural fairness is simply one aspect of the doctrine of natural justice which is applied at common law to administrative tribunals. This Court has consistently refused to restrict the substantive guarantee of fundamental justice in s. 7 to the procedural realm. In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, this Court was unanimous in finding that "`fundamental justice', as the term is used in the Charter , involves more than natural justice (which is largely procedural) and includes as well a substantive element": per McIntyre J. at pp. 521-22. As Lamer J. writing for the majority elaborated at pp. 501-3:
. . . I am of the view that it would be wrong to interpret the term "fundamental justice" as being synonymous with natural justice as the Attorney General of British Columbia and others have suggested. To do so would strip the protected interests of much, if not most, of their content and leave the "right" to life, liberty and security of the person in a sorely emaciated state. Such a result would be inconsistent with the broad, affirmative language in which those rights are expressed and equally inconsistent with the approach adopted by this Court toward the interpretation of Charter rights in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, per Estey J., and Hunter v. Southam Inc., supra.
. . .
. . . the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system. Such an approach to the interpretation of "principles of fundamental justice" is consistent with the wording and structure of s. 7, the context of the section, i.e., ss. 8 to 14, and the character and larger objects of the Charter itself. It provides meaningful content for the s. 7 guarantee all the while avoiding adjudication of policy matters.
Thus, it seems to me that to replace "fundamental justice" with the term "natural justice" misses the mark entirely.
100 In the context of the admission of evidence, procedural fairness looks only to the use of evidence in the proceedings (i.e., issues of reliability and relevancy), whereas the principles of fundamental justice require an examination of whether constitutional guarantees were respected in the manner in which the evidence was obtained.
101 Moreover, the mere fact that protections found in the common law may be substantially co-extensive with Charter protections is not sufficient justification for denying a citizen the opportunity to obtain a just and appropriate remedy for a Charter breach.
102 The Charter provides significant protections to Canadians and governs every aspect of the interaction between the state and the individual in Canada. The view that a citizen must be content with the protections offered by the common law in spite of Charter guarantees is a reactionary approach to constitutional rights which has not been endorsed by this Court.
103 Our constitutional jurisprudence has developed on the basis that the Charter should be given a broad and purposive interpretation. It is consistent with this view that a generous approach be taken to granting Charter remedies. Generally speaking, it is preferable to find tribunals capable of granting constitutional remedies where those lie within their statutory mandate. In the event that a tribunal errs in this regard, a court can correct the error. As La Forest J. points out, statutory tribunals "can expect no curial deference with respect to constitutional decisions": Cuddy Chicks, at p. 17.
(5) The U.S. Case Law
104 Sopinka J. finds support for not excluding evidence in the parole context from the decisions of ten of the federal circuit courts in the United States. In my view the U.S. decisions are of limited assistance in the resolution of this aspect of the appeal.
105 The different approaches taken to the exclusion of evidence under the U.S. Constitution and the Charter make it difficult to apply the U.S. cases in the Canadian context. Deterrence of police misconduct is a primary rationale for applying their exclusionary rule at trial: "The rule is calculated to prevent, not to repair. Its purpose is to deter -- to compel respect for the constitutional guaranty in the only effectively available way -- by removing the incentive to disregard it": Elkins v. United States, 364 U.S. 206 (1960), at p. 217. The U.S. cases hold that there will be no further deterrence of police misconduct by excluding, from the parole procedure, evidence which was excluded at trial: United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161 (2d Cir. 1970); United States v. Winsett, 518 F.2d 51 (9th Cir. 1975).
106 The American jurisprudence is not analogous and has to be distinguished from the Canadian approach under s. 24(2) by which unconstitutionally obtained evidence is to be excluded only if the admission of it in the proceedings would bring the administration of justice into further disrepute. As this Court held in R. v. Collins, [1987] 1 S.C.R. 265, at pp. 280-81:
Misconduct by the police in the investigatory process often has some effect on the repute of the administration of justice, but s. 24(2) is not a remedy for police misconduct, requiring the exclusion of the evidence if, because of this misconduct, the administration of justice was brought into disrepute. Section 24(2) could well have been drafted in that way, but it was not. Rather, the drafters of the Charter decided to focus on the admission of the evidence in the proceedings, and the purpose of s. 24(2) is to prevent having the administration of justice brought into further disrepute by the admission of the evidence in the proceedings. This further disrepute will result from the admission of evidence that would deprive the accused of a fair hearing, or from judicial condonation of unacceptable conduct by the investigatory or prosecutorial agencies. [Emphasis added.]
107 The United States approach does admit of an important exception to the non-application of the exclusionary rule in the context of parole revocation. A number of circuit courts have suggested that an exception should be made where the parolee is singled out as the subject of official harassment or in circumstances giving rise to an abuse of the parole process. The cases note that if the police or parole officers are aware that the fruits of an illegal search, while inadmissible at a criminal trial, can be relied upon for parole revocation purposes, this may encourage constitutional violations. As parole revocation can, in some cases, lead to a return to prison for a substantial period of time, it may present an "alternative to federal trial on the new charges": United States v. Workman, 585 F.2d 1205 (1978), at p. 1211.
108 Admission of unconstitutionally obtained evidence in a parole revocation hearing could provide an incentive for the police to achieve indirectly what they cannot obtain directly by unconstitutional conduct: the return of the parolee to prison. As the Ninth Circuit noted in United States v. Winsett, supra, at p. 54, fn. 5:
. . . when the police at the moment of search know that a suspect is a probationer, they may have a significant incentive to carry out an illegal search even though knowing that evidence would be inadmissible in any criminal proceeding. The police have nothing to risk: If the motion to suppress in the criminal proceedings were denied, defendant would stand convicted of a new crime; and if the motion were granted, the defendant would still find himself behind bars due to revocation of probation. Thus, in such circumstances, extension of the exclusionary rule to the probation revocation proceeding may be necessary to effectuate Fourth Amendment safeguards.
109 The United States jurisprudence was raised in the submissions of the Attorney General for Ontario. The position urged by that intervener was not that the U.S. approach supports depriving a parolee of the opportunity to raise a Charter right and seek an exclusionary remedy in a parole proceeding. The American approach is that it would be a rare situation where the admission of unconstitutionally obtained evidence would bring the administration of justice into disrepute. In its factum, Ontario submits at para. 33:
The Attorney General submits that an appropriate standard for exclusion would arise where consideration of the information, in all of the circumstances, would condone a flagrant breach of the Charter designed specifically to undermine the parole process. The United States cases demonstrate that there will be such rare situations. For example, where law enforcement officials single out an individual and partake in a serious violation of the parolee's Charter rights, knowing that this information will be inadmissible in Court, but seeking to rely on it solely for the purpose of achieving a revocation of parole, it may be appropriate for the Court to "dissociate itself" from such conduct. In such a situation, it can not be said that the parole officials were engaged in furthering the rehabilitation goals of parole supervision. Indeed, in such a situation the official misconduct is directed at an abuse of the parole process. In this regard, that small part of the "administration of justice" over which the Parole Board is responsible is what is being brought into disrepute, and it may be appropriate for the Board to remedy the situation by refusing to consider the information. [Emphasis added.]
110 I agree. When read as a whole, the United States cases establish that exclusion of unconstitutionally obtained evidence should be limited to circumstances where there has been an abuse of the parole process. In Canada, the s. 24(2) test of whether admission of the evidence in all the circumstances would bring the administration of justice into disrepute allows for exactly the type of nuanced approach favoured by the U.S. courts.
(6) The Test to be Applied Under Section 24(2)
111 In my opinion there is a need to preserve the right of a parolee to seek the exclusion of evidence from consideration by the National Parole Board on the ground that it was obtained in a manner which was an abuse of the parole process and that the consideration of such evidence would bring the part of the administration of justice over which the Parole Board presides into disrepute. On the other hand, in practice, such exclusion of evidence will be rare.
112 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.
113 Concern for public safety lies at the heart of the Parole Board's mandate. Its statutory requirement is that it consider all relevant information in its determinations, and the guilt or innocence of the parolee is not in issue. Given these considerations it would be an unusual circumstance where the admission of evidence obtained contrary to Charter principles in the parole context would bring the administration into disrepute.
114 A threatened abuse of the parole process in violation of s. 7 of the Charter would likely be such a situation, a view which is consistent with the Board's statutory mandate to make their considerations in accordance with the "principles of fundamental justice". 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.
III. Conclusion
115 After a consideration of the principles enunciated in the prior cases of this Court, and an examination of the governing statute and the role which the Parole Board is intended to fulfil in the broader context of the "administration of justice", I conclude that the National Parole Board is a "court of competent jurisdiction" for the purposes of a s. 24(2) exclusion of evidence from its deliberations.
116 The Parole Board meets the tripartite Mills criteria, its statutory mandate specifically contemplates that it make its decisions in accordance with Charter principles, and policy considerations militate in favour of recognizing this body, which has the right to finally determine a liberty interest, as a court of competent jurisdiction to grant a just and appropriate Charter remedy. I therefore conclude that the majority of the British Columbia Court of Appeal was correct to hold that the National Parole Board is a court of competent jurisdiction for the purposes raised on this appeal and would dismiss the appeal.
IV. Remedy
117 I am in agreement with both parties that Lambert J.A., on behalf of the court below, misconceived the nature of certiorari in aid of habeas corpus believing it to be necessary to quash the decision of the National Parole Board. Only the Federal Court has jurisdiction to grant certiorari as a remedy with respect to a decision of the National Parole Board. Certiorari in aid of habeas corpus is the means by which a reviewing court may obtain the evidentiary record for the purpose of determining an application for habeas corpus: see Re Cardinal and Oswald and the Queen (1982), 67 C.C.C. (2d) 252 (B.C.C.A.), at pp. 269-70, rev'd on other grounds [1985] 2 S.C.R. 643 (sub nom. Cardinal v. Director of Kent Institution).
118 This appeal arose from an application for habeas corpus. Once it is determined that the respondent was unlawfully detained owing to the failure of the National Parole to exercise its jurisdiction to determine the constitutional issue raised by the respondent, the respondent is entitled to request the court to grant a writ of habeas corpus to relieve him from unlawful detention. However the court retains the discretion at common law not to issue a writ of habeas corpus but rather to direct that the constitutional challenge be remitted back to the tribunals for a determination on the merits: R. v. Pearson, [1992] 3 S.C.R. 665, at p. 701 per Lamer C.J. In my view, in most instances the appropriate remedy would be an order remitting the matter back to the National Parole Board for a further hearing.
V. Disposition
119 In the particular circumstances of this case in which the respondent's sentence has already expired I agree with Sopinka J. that the National Parole Board is functus officio. I would therefore uphold that portion of the order of the British Columbia Court of Appeal which granted the writ of habeas corpus.
Appeal allowed, McLachlin and Major JJ. dissenting.
Solicitor for the appellants: George Thomson, Ottawa.
Solicitor for the respondent: Jeffrey R. Ray, New Westminster, B.C.
Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.
Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.
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