Date: 20001218
Docket: A-399-99
OTTAWA, ONTARIO, MONDAY, DECEMBER 18, 2000
CORAM: DÉCARY
LÉTOURNEAU
NOËL, JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
AND:
ANTOINE C. ZARZOUR
Respondent
JUDGMENT
The appeal is allowed with costs, the decision of the trial judge is set aside and the respondent's action is dismissed with costs. The respondent is ordered to repay the appellant the sum of $16,461.10.
The cross-appeal is dismissed with costs.
"Robert Décary"
J.A.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20001218
Docket: A-399-99
CORAM: DÉCARY
LÉTOURNEAU
NOËL, JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
AND:
ANTOINE C. ZARZOUR
Respondent
Hearing held in Montréal, Quebec, Monday, November 27, 2000
Judgment rendered in Ottawa, Ontario, Monday, December 18, 2000
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRING: DÉCARY J.A.
NOËL J.A.
Date: 20001218
Docket: A-399-99
CORAM: DÉCARY
LÉTOURNEAU
NOËL, JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
AND:
ANTOINE C. ZARZOUR
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU, J.A.
[1] This is an appeal and a cross-appeal from a judgment rendered on May 28, 1999 by a judge of the Trial Division. At the conclusion of this judgment, the Crown was ordered to delete from the records on the inmate Antoine Zarzour, both the one in the possession of the National Parole Board (the Board) and the one in the possession of the Correctional Service of Canada (the Service), two letters that his former wife had sent to the Board in 1994. The Crown was further ordered to pay Mr. Zarzour damages in the amount of $15,000 with interest from the date of service, including $5,000 as punitive damages, as well as the costs and disbursements he had incurred.
[2] Through her appeal, Her Majesty is asking that the judgment be reversed. For his part, Mr. Zarzour, by way of his cross-appeal, wants to have the amount of the damages increased, although he leaves it to the Court to determine the amount. He asks that the exemplary damages be increased to $50,000. He is also appealing the part of the judgment that dismisses the damages he was seeking for injury to his reputation. Finally, he asks that this Court reverse another aspect of the judgment that refused to set aside or restrict the scope of the decisions rendered by the Board on January 17, 1996, November 13, 1996 and April 17, 1997.
Facts and proceedings
[3] The respondent Mr. Zarzour has since 1977 been serving a sentence of life imprisonment for a second degree murder offence. Under the influence of drugs, he enticed his drug trafficking partner into a wooded area and shot him almost point-blank in the neck. Subsequently added to this initial prison sentence were others for being unlawfully at large, dangerous driving and public mischief.
[4] In 1986, France Bélanger was a student in criminology. She visited the penitentiary where the respondent was being held. They met, began seeing each other, and in March 1988 were married. A son was born of this union. The parties lived together when the respondent was on parole. Marital problems developed and the parties separated in December 1989. They were divorced in 1991.
[5] In May 1990, the respondent went to Vancouver to work there. During that year, he was reincarcerated after failing to comply with the conditions of his release, but not without first fleeing and living illegally for eight months in California, where he was arrested and extradited: Appeal Book, vol. 3, p. 821.
[6] In November 1993, the respondent was again paroled, this time on day parole in a transition house. He returned to Montréal where his former wife and his son were living. In February 1994, he was again imprisoned for failing to report to the Montréal Detention Centre as required by the conditions of his release.
[7] In January 1994, France Bélanger learned of her former husband's return to the Montréal area. She believed and feared that he would try to contact her and her son. At the time, she was employed by the Service as a criminologist and was working as a community case management officer.
(a) Ms. Bélanger's first letter
[8] Motivated by this fear and the desire to avoid any contact with the respondent, on January 22, 1994 she wrote a letter to the Board in which she described the marital difficulties she said she had experienced before the break-up of their marriage. She asked that if the respondent were released, he be ordered as a specific condition not to contact her or any other member of her family directly or indirectly. Her letter was placed in the respondent's file at the Board and a copy was sent by the Board to the Service to be placed in the inmate's file.
[9] There was no action taken in response to this letter at the time, since, as I mentioned earlier, the Board decided in February 1994 to revoke the respondent's parole, then suspended, thereby adopting the recommendation that its officials had made to it. The presence of the letter in the respondent's file was noted by the Board, but it did not have to consider the truthfulness of its contents since it viewed the respondent's conduct as sufficient to revoke his parole. In fact, this was the second breach of his parole terms by the respondent, and he admitted having consumed cocaine and heroin intravenously: id., at p. 822.
(b) Ms. Bélanger's second letter
[10] On May 16, 1994, France Bélanger again wrote to the Board. In this letter, she described herself as a victim of spousal violence and as a victim within the meaning of the Corrections and Conditional Release Act (the Act), S.C. 1992, c. 20. She expressed outrage at the fact that the Board had taken no account of her first letter. This second letter was again placed in the respondent's file at the Board and the Service.
[11] Subsequently, the respondent was given a hearing by the Board for the first time on January 17, 1996, and he was denied day parole and full parole in view of his drug consumption for several years, the difficulties he had in anxiety-producing (interpersonal, professional and financial) situations, his unlawful at-larges, his aggressiveness and his emotional and affective problems: Appeal Book, vol. 4, p. 948. The risk factors analysis refers to a polymorphous criminality of a violent character. The respondent behaved aggressively during the hearing, moreover: id., at p. 951. As well, the Board notes the lack of any benefits and achievements in view of the decisive factors in the respondent's criminality: his refusal, for example, to acknowledge the need for drug abuse therapy or to do some intensive thinking about his emotional instability: id., at p. 950. The Board concluded that the risk of recidivism was extremely high.
[12] The decision of January 17 was reviewed and upheld on August 21, 1996: id., at p. 968. On February 21, 1997, the respondent was informed that he would be given a new hearing because a Board member had intervened too often at the hearing of January 17, 1996, raising a possible apprehension of non-compliance with the rule against bias. The hearing was held on April 17, 1997. The Board was still concerned about the respondent's addiction to drugs and his many escapes and failures in the past: id., at p. 1117. Consequently, he was denied a pre-release day parole. But he was authorized to take pre-release unescorted leave under a number of conditions related to his violent polymorphous criminality and his consumption of intoxicants. Another condition was not to enter into contact with his former wife either personally or through anyone else: id., at p. 1115.
[13] Alleging that Ms. Bélanger's two letters were the source of his difficulties with the Board and the Service, the respondent brought an action against Her Majesty the Queen. He filed a Statement of Claim in the Trial Division on June 25, 1997. In it, he states that his constitutional rights under sections 1, 7, 9, 12 and 15 of the Canadian Charter of Rights and Freedoms (the Charter) were breached, that his former wife was unfairly considered a victim by the Board and the Service, that these two agencies unlawfully disclosed to her information concerning him, and that both the Board and the Service failed to investigate the truthfulness of the information contained in these two letters, which they had used to his detriment. Hence the conclusions sought in damages, a review of the Board's decisions and their deletion from his record.
Decision of the trial judge
[14] The trial judge complained of the lack of support he was given by the parties at trial in terms of both the analysis of the facts and the law applicable to these facts. At paragraph 10 of his decision, he notes how difficult it was "to render judgment as the analysis can only deal essentially with the facts without the Court having the benefit of a brief discussion of the points of law". Most fortunately, we did not encounter this kind of difficulty on appeal, at least certainly not of the scope he experienced. In any event, after hearing from the parties, the trial judge concluded that Ms. Bélanger, the respondent's former wife, was not a victim within the meaning of subsections 26(2) and 142(3) of the Act, that the Service and the Board had classified her as such without verification on their part, and that the Board had a duty to verify whether Ms. Bélanger did or did not meet the criteria of the Act in order to be characterized as such. Under subsection 2(1) of the Act, a victim is a person who suffered physical or emotional damage as a result of the commission of an offence. For the purposes of disclosure of information under subsections 26(3) and 142(3) of the Act, a victim is a person who satisfies the Commissioner "that ... the person suffered physical or emotional damage, as a result of an act of an offender, whether or not the offender was prosecuted or convicted for that act; and ... that a complaint was made to the police or the Crown attorney, or an information was laid under the Criminal Code, in respect of that act".
[15] The trial judge was also of the opinion that the Board had, in breach of subsection 144(2) of the Act, conveyed to Ms. Bélanger some information contained in the registry that it is required to maintain under subsection (1) of that section, which reads:
| 144. (1) The Board shall maintain a registry of the decisions rendered by it under this Part and its reasons for each such decision.
(2) A person who demonstrates an interest in a case may, on written application to the Board, have access to the contents of the registry relating to that case, other than information the disclosure of which could reasonably be expected
(a) to jeopardize the safety of any person;
(b) to reveal a source of information obtained in confidence; or
(c) if released publicly, to adversely affect the reintegration of the offender into society.
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144. (1) La Commission constitue un registre des décisions qu'elle rend sous le régime de la présente partie et des motifs s'y rapportant.
(2) Sur demande écrite à la Commission, toute personne qui démontre qu'elle a un intérêt à l'égard d'un cas particulier peut avoir accès au registre pour y consulter les renseignements qui concernent ce cas, à la condition que ne lui soient pas communiqués de renseignements dont la divulgation risquerait vraisemblablement:
a) de mettre en danger la sécurité d'une personne;
b) de permettre de remonter à une source de renseignements obtenus de façon confidentielle;
c) de nuire, s'ils sont rendus publics, à la réinsertion sociale du délinquant.
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The judge said he was persuaded that the Board's decisions in relation to the respondent had been conveyed to Ms. Bélanger even before she had made a written application to have access to the registry, as the Act requires.
[16] Finally, the trial judge considered the unlawful disclosure to Ms. Bélanger of information pertaining to the respondent as a breach of "the plaintiff's right to liberty of the person, protection against unusual treatment and the right to equal protection and equal benefit of the law without discrimination". Although he did not say so in so many words, it can be presumed that, through this terminology, he was referring to sections 7, 12 and 15 of the Charter on which the respondent was relying in his action.
Analysis of the decision
[17] The appellant has raised a number of grounds of appeal, which I intend to address by analyzing the following five questions:
1. Was the trial judge justified in ordering that Ms. Bélanger's letters be deleted from the respondent's file?
2. Did the Board have a duty to verify the reliability of the content of Ms. Bélanger's letters?
3. Did the Board make use of Ms. Bélanger's letters, and if so, did it verify their reliability and persuasive value before doing so?
4. Did the Service and the Board unlawfully provide an unauthorized person with information concerning the respondent's record?
5. Did the actions of the Board and the Service breach the respondent's rights to liberty, equality before the law and protection against any unusual treatment?
[18] The answer to these questions will also dispose of the cross-appeal, albeit only in part. The other grounds of appeal alleged by the respondent and remaining unresolved will be specifically addressed under the term cross-appeal.
Was the trial judge justified in ordering that Ms. Bélanger's letters be deleted from the respondent's file?
[19] With respect, I think the judge was mistaken concerning the applicable principle in such situations.
[20] There is no doubt that the two letters sent to the Board by Ms. Bélanger contain, in accordance with the language of section 3 of the Privacy Act, R.S.C. 1985, c. P-21, personal information about the respondent. This section defines such information as follows:
| 3.
[...]
"personal information" means information about an identifiable individual that is recorded in any form including, without restricting the generality of the foregoing,
(a) information relating to the race, national or ethnic origin, colour, religion, age or marital status of the individual,
(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved.
(c) any identifying number, symbol or other particular assigned to the individual,
[...]
(g) the views or opinions of another individual about the individual,
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3.
[...]
"renseignements personnels" Les renseignements, quels que soient leur forme et leur support, concernant un individu identifiable, notamment:
a) les renseignements relatifs à sa race, à son origine nationale ou ethnique, à sa couleur, à sa religion, à son âge ou à sa situation familiale;
b) les renseignements relatifs à son éducation, à son dossier médical, à son casier judiciaire, à ses antécédents professionnels ou à des opérations financières auxquelles il a participé;
c) tout numéro ou symbole, ou toute autre indication identificatrice, qui lui est propre;
[...]
g) les idées ou opinions d'autrui sur lui.
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[21] Nor is there any doubt that these letters from the respondent's former wife, to the degree that they evoke the possibility of violence and a fear for the security of their author and of the members of her family, constitute relevant information that the Board ought to take into account as needed in the performance of its mandate. Section 101 of the Act states unequivocally that the Board has a duty to consider all available information that is relevant to a case and that the protection of society is the paramount consideration in the determination of any case:
| 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;
(c) that parole boards enhance their effectiveness and openness through the timely exchange of relevant information with other components of the criminal justice system and through communication of their policies and programs to offenders, victims and the general public;
(d) that parole boards make the least restrictive determination consistent with the protection of society;
(e) that parole boards adopt and be guided by appropriate policies and that their members be provided with the training necessary to implement those policies; and
(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.
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101. La Commission et les commissions provinciales sont guidées dans l'exécution de leur mandat par les principes qui suivent:
a) la protection de la société est le critère déterminant dans tous les cas;
b) elles doivent tenir compte de toute l'information pertinente disponible, notamment les motifs et les recommandations du juge qui a infligé la peine, les renseignements disponibles lors du procès ou de la détermination de la peine, ceux qui ont été obtenus des victimes et des délinquants, ainsi que les renseignements et évaluations fournis par les autorités correctionnelles;
c) elles accroissent leur efficacité et leur transparence par l'échange de renseignements utiles au moment opportun avec les autres éléments du système de justice pénale d'une part, et par la communication de leurs directives d'orientation générale et programmes tant aux délinquants et aux victimes qu'au public, d'autre part;
d) le règlement des cas doit, compte tenu de la protection de la société, être le moins restrictif possible;
e) elles s'inspirent des directives d'orientation générale qui leur sont remises et leurs membres doivent recevoir la formation nécessaire à la mise en oeuvre de ces directives;
f) de manière à assurer l'équité et la clarté du processus, les autorités doivent donner aux délinquants les motifs des décisions, ainsi que tous autres renseignements pertinents, et la possibilité de les faire réviser.
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[22] Furthermore, the Board does not have jurisdiction under subsection 24(2) of the Charter to exclude information or evidence that is provided to it: Mooring v. Canada (NPB), [1996] 1 S.C.R. 75. Its role is to investigate the appropriateness of releasing an individual who has been given a prison term and to ensure that in so doing it does not compromise the primary objective, which is to ensure the protection of society. The following passage by Sopinka J., extracted from the decision, supra, at pages 92 and 93, accurately summarizes the Board's role and the mandate to include, not exclude, evidence:
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.
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. ...
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".
[23] In so far as the information on an inmate received by the Board is relevant to his activities and, as Sopinka J. says, has not been obtained improperly, the Board cannot suppress it. As it is personal information, which can be used for administrative purposes, this information should, after it is used, be kept in order to enable the individual it concerns to exercise his right of access to the information. A federal institution must also, to the degree possible, ensure the accuracy, currency and comprehensiveness of the information it uses for administrative purposes. I reproduce section 6 of the Privacy Act, supra, which creates these obligations, and I will come back later to the obligation to ensure that this information is accurate:
| 6. (1) Personal information that has been used by a government institution for an administrative purpose shall be retained by the institution for such period of time after it is so used as may be prescribed by regulation in order to ensure that the individual to whom it relates has a reasonable opportunity to obtain access to the information.
(2) A government institution shall take all reasonable steps to ensure that personal information that is used for an administrative purpose by the institution is as accurate, up-to-date and complete as possible.
(3) A government institution shall dispose of personal information under the control of the institution in accordance with the regulations and in accordance with any directives or guidelines issued by the designated minister in relation to the disposal of that information.
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6. (1) Les renseignements personnels utilités par une institution fédérale à des fins administratives doivent être conservés après usage par l'institution pendant une période, déterminée par règlement, suffisamment longue pour permettre à l'individu qu'ils concernent d'exercer son droit d'accès à ces renseignements.
(2) Une institution fédérale est tenue de veiller, dans la mesure du possible, à ce que les renseignements personnels qu'elle utilise à des fins administratives soient à jour, exacts et complets.
(3) Une institution fédérale procède au retrait des renseignements personnels qui relèvent d'elle conformément aux règlements et aux instructions ou directives applicables du ministre désigné.
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[24] Subsection (3) obliges a federal institution to dispose of personal information only in accordance with the system established by regulations, directives or guidelines, not to mention section 5 of the National Archives of Canada Act, R.S.C. 1985, c. N-25, which states that no record under the control of a federal institution shall be destroyed or disposed of without the consent of the National Archivist of Canada. These provisions are intended to protect the subject of personal information, enable federal institutions to carry out their assigned duties in an efficient manner, and preserve the integrity of federal records.
[25] Furthermore, some additional protection other than the suppression of information on record is provided to an individual who is the subject of personal information. In addition to his right of access to the information, this person may, under subsection 12(2) of the Privacy Act, ask that personal information that concerns him and that might be used for administrative purposes be corrected. If the requested corrections are not made, he may require that a notation be attached to the record reflecting the corrections he has requested:
| 12. (2) Every individual who is given access under paragraph (1)(a) to personal information that has been used, is being used or is available for use for an administrative purpose is entitled to
(a) request correction of the personal information where the individual believes there is an error or omission therein;
(b) require that a notation be attached to the information reflecting any correction requested but not made; and
(c) require that any person or body to whom that information has been disclosed for use for an administrative purpose within two years prior to the time a correction is requested or a notation is required under this subsection in respect of that information
(i) be notified of the correction or notation, and
(ii) where the disclosure is to a government institution, the institution make the correction or notation on any copy of the information under its control.
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12. (2) Tout individu qui reçoit communication, en vertu de l'alinéa (1)a), de renseignements personnels qui ont été, sont ou peuvent être utilisés à des fins administratives, a le droit:
a) de demander la correction des renseignements personnels le concernant qui, selon lui, sont erronés ou incomplets;
b) d'exiger, s'il y a lieu, qu'il soit fait mention des corrections qui ont été demandées mais non effectuées;
c) d'exiger:
(i) que toute personne ou tout organisme à qui ces renseignements ont été communiqués pour servir à des fins administratives dans les deux ans précédant la demande de correction ou de mention des corrections non effectuées soient avisés de la correction ou de la mention,
(ii) que l'organisme, s'il s'agit d'une institution fédérale, effectue la correction ou porte la mention sur toute copie de document contenant les renseignements qui relèvent de lui.
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Once again, this provision manifests Parliament's intention to preserve the personal information records held by a federal institution in their entirety.
[26] In the circumstances of this case, I think the trial judge could not order that France Bélanger's letters be deleted from the respondent's file, still less destroyed or completely eliminated as the verb "deleted" [extirper] suggests, both literally and figuratively: see Le Petit Robert, Dictionnaire de la langue française, 1991, page 741; Le Petit Larousse illustré, 1998, page 415; and Trésor de la langue française, tome 8, page 521 [Oxford English Dictionary, 2nd ed., 1994: "Delete (v.): To destroy, annihilate, abolish, eradicate, do away with; To strike or blot out, obliterate, erase, expunge (written or printed characters)"].
Did the Board have a duty to verify the reliability of the content of Ms. Bélanger's letters?
[27] It is clear from the Mooring decision, supra, that the Board must act in accordance with the principles of fairness. This obligation appears in paragraph 101(f) of the Act. Thus, in assessing risk to society, the Board, while not subject to the rigidity of the rules of evidence applicable to the courts, has a duty to examine all the available reliable information. The reliability of information is a function of its accuracy. The Board need not consider relevant information that is inaccurate and therefore unreliable. But in so far as it wishes to use information that is relevant to the matter at hand, it must satisfy itself of its accuracy and its persuasive value, or it will fail in its duty to act fairly, as this extract from Mooring, supra, makes clear in paragraph 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.
[28] Subsection 6(2) of the Privacy Act, to which I referred earlier, is perfectly consistent with this. It creates an obligation in the federal institution to ensure that the personal information it uses for an administrative purpose is accurate and up-to-date. This obligation exists only in regard to the information it uses and not in regard to all the information it must retain under subsection (1) for a sufficient period to enable the person concerned to obtain access to it and, if necessary, have the necessary correction or notation made under section 12, which is not limited to the information that is being used but extends to information that has been used or is available for use for an administrative purpose.
[29] The Service, likewise, is subject to a similar obligation, with an inmate's right of correction and notation, under section 24 of the Act:
| 24. (1) The Service shall take all reasonable steps to ensure that any information about an offender that it uses is as accurate, up to date and complete as possible.
(2) Where an offender who has been given access to information by the Service pursuant to subsection 23(2) believes that there is an error or omission therein,
(a) the offender may request the Service to correct that information; and
(b) where the request is refused, the Service shall attach to the information a notation indicating that the offender has requested a correction and setting out the correction requested.
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24. (1) Le Service est tenu de veiller, dans la mesure du possible, à ce que les renseignements qu'il utilise concernant les délinquants soient à jour, exacts et complets.
(2) Le délinquant qui croit que les renseignements auxquels il a eu accès en vertu du paragraphe 23(2) sont erronés ou incomplets peut demander que le Service effectue la correction; lorsque la demande est refusée, le Service doit faire mention des corrections qui ont été demandées mais non effectuées.
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In the case at bar, the information coming from Ms. Bélanger was relevant and the Board rightly filed it in the respondent's record. It could ignore it if it was not reliable. But if it wished to use it, it had a duty under the procedural fairness principle, its Act and the Privacy Act, to verify its accuracy and persuasive value.
Did the Board make use of Ms. Bélanger's letters, and if so, did it verify their reliability and persuasive value before doing so?
[30] First, it must be asked whether the Board used the information in question in its decisions of 1994, 1996 and 1997 concerning the respondent's parole. Second, if we conclude that it did in fact use this information, it must then be determined whether it fulfilled its duty to act fairly by verifying the reliability and persuasive value of that information.
[31] Clearly, as was stated earlier in paragraph 9, the Board did not use Ms. Bélanger's letters in its decision of February 1994 revoking the respondent's parole. This was also the opinion of the Appeal Division members in their decision of August 21, 1996: Appeal Book, vol. 4, at p. 973.
[32] Nor do I believe that it used it during its hearings of January 17, 1996. As I stated previously, in paragraph 11, the refusal to grant the requested paroles is attributable to the respondent's high risk of recidivism and emotional instability.
[33] On an appeal by the respondent from the decision of January 17, 1996, in which he alleged that the Board had ruled against him by relying on Ms. Bélanger's letters, the Appeal Division members also concluded, rightly in my opinion, that the allegations contained in her letters had not been considered as one of the reasons for the decision: id., at p. 974.
[34] That being said, however, there is no doubt that at the hearing of April 17, 1997, Ms. Bélanger's request was considered in part by the Board and as a consequence the respondent's pre-release absence was subject to the condition that he not contact her. I say in part because Ms. Bélanger's request was much more inclusive than the condition imposed by the Board. The prohibition on contact that was requested covered not only Ms. Bélanger herself but extended to all members of her family including her father and, no doubt in the context, her son since, in her letter of January 22, 1994, she said she had been forced to remake her life and that she and her son now constituted a fine family: Appeal Book, vol. 3, at p. 781. Now, as we have seen, the prohibition on contact applied to her alone and left open the possibility that the respondent could obtain and exercise some access to his son.
[35] In short, the trial judge was right to conclude, from the fact that such a condition had been imposed, that the Board had used Ms. Bélanger's letters.
[36] The evidence before the trial judge demonstrates that certain checks were made on the content of the information conveyed to the Board by Ms. Bélanger. Mr. Williams, a clinical counsellor responsible for monitoring the respondent while he was on parole, testified that he was informed on February 10, 1994 of the content of Ms. Bélanger's letter of January 22, 1994 and that there was a meeting to discuss some appropriate steps to verify certain aspects of its content: Appeal Book, vol. 2, at p. 193.
[37] It was agreed at this meeting to check first with Ms. Bélanger's father her allegations that the respondent had telephoned Mr. Bélanger and threatened him. The verification was made and proved negative: Mr. Bélanger stated that he had not been threatened and did not feel threatened: id., at pp. 199-211. Mr. Williams also attempted to contact a friend of the respondent to confirm certain other information, but it was impossible to speak to him. He also spoke to the respondent's father and, by telephone, with Ms. Bélanger: id., at pp. 199-200. In his post-release suspension review report on the respondent, Mr. Williams expressed the opinion that he did not think the respondent presented an undue risk to Ms. Bélanger's security: Appeal Book, vol. 3, at p. 791.
[38] I do not think, as the respondent appears to be arguing, that it is always necessary to conduct an inquiry to verify information that the Board receives. Given its needs, resources and expertise, the Board must be given some latitude, obviously within some legal parameters, as to the appropriate methods for guaranteeing the reliability of information that is supplied to it. It may be appropriate to do so by an investigation or by merely inquiring further. But confronting the person primarily affected with the allegations made in his regard, and enabling him to comment on them and rebut them, is also a significant method of verification which is generally done unless there is some security problem: see section 141 of the Act and the National Parole Board Policy Manual. Furthermore, in terms of fairness, the confrontation ensures compliance with those principles and, in terms of the release objective, is a way of gauging the inmate's reaction and his sincerity in the face of the allegations.
[39] In this case, in addition to the checks that had already been conducted, the respondent was confronted with Ms. Bélanger's allegations at the 1996 hearing in what the Appeal Division members characterize, in their decision of August 21, 1996, as "tough" questioning by the Board members. Under the heading "[Translation] The impact of your wife's letter", they write:
[Translation]
This question was debated at length at the hearing and the Appeal Division notes and [sic] that the Board members did not take a position in the Decision Sheet in favour of the allegations made by your former wife nor of your replies in this regard. At most, they noted the Service's recommendation to impose an additional condition of non-contact, which, in the circumstances, would probably not have been unreasonable had you been granted parole. This recommendation is pursuant to the explicit request of your wife, which is frequent in cases of this kind. You had the right to refute, deny or answer the allegations of your former wife, which was done. ...
As indicated, although this question [truthfulness of your wife's allegations] was the subject of "tough" questioning by the Board members, they did not adopt these allegations as one of the reasons for the decision.
[Emphasis added]
Appeal Book, vol. 4, at p. 974
The respondent was also confronted with these allegations at the hearing of April 17, 1997, at which the decision was made to proceed with an extremely gradual release of the respondent: id., at pp. 1116-17.
[40] In addition to gauging the reliability of the allegations, the questioning by the Board members was an opportunity to bring them up to date with the respondent. As to whether they were updated with their source, Ms. Bélanger, the Board knew that she had asked to be informed of the Board's decisions in relation to the respondent's parole periods and conditions, thus demonstrating her current and ongoing fear of being contacted by the respondent. Furthermore, Ms. Bélanger telephoned the Board to inform it of her changes of address, so she could continue to receive the information she had requested on the respondent's comings and goings: Appeal Book, vol. 2, at p. 377.
[41] I am also satisfied that the Board assessed the persuasive value of Ms. Bélanger's allegations. The prohibition on contact imposed by the Board, which was much more limited than the one requested, indicates that the Board weighed the allegations against the information obtained and put things in perspective. It convinces me that the Board, in the exercise of its mandate of ensuring the protection of society, and given the respondent's violent record and his personality, preferred to act prudently, while continuing to be fair to the respondent.
[42] As the Appeal Division noted in the aforecited extract, this kind of condition is not infrequently imposed on relations with a former spouse, especially when she has remade or reorganized her life. Even Mr. Williams, the respondent's clinical counsellor, who was satisfied that the allegations of threats made to Ms. Bélanger's father were without foundation, and who did not think the respondent might constitute a risk to his former wife, nevertheless recommended that a prohibition on contact with her be imposed as a preventative measure: Appeal Book, vol. 3, at p. 791.
[43] There may be a number of reasons to warrant the imposition of this kind of condition, not necessarily based on the former spouse's fear. It may be a therapeutic measure when, for example, the breakdown of the marriage and the marital problems associated therewith are the source of the inmate's emotional instability or, to use the actual expression of the Board, could "[Translation] generate some factors of destabilization": Appeal Book, vol. 4, at p. 950.
[44] To sum up and conclude on this issue, I am satisfied, after a review of the relevant evidence on file, that the Board did check sufficiently the reliability of Ms. Bélanger's allegations and that it did gauge their persuasive value. The condition, as imposed, while much more limited than the one requested, reflects, in my view, the exercise of assessment and evaluation in which the Board engaged.
[45] Before proceeding to the analysis of the next question, it is worth discussing a procedural consideration that was raised at first instance.
[46] The trial judge said he was concerned by a serious procedural problem that the parties had not addressed. Could the respondent proceed by an action in damages as he did, citing the unlawfulness of the Board's decisions? Or should he instead have filed an application for judicial review under section 18.1 of the Federal Court Act, to attack these decisions within the allotted time? He concluded that the respondent should have proceeded by way of an application for judicial review and consequently that a large part of his action was inadmissible.
[47] The question is not a new one in litigation emanating from the prison environment and has given rise judicially to some differences of opinion: see Zubi v. Canada (1994) 71 F.T.R. 168 (F.C.T.D.); Shaw v. Canada (1997) 134 F.T.R. 128 (F.C. Protho.); Creed v. Canada (Solicitor General) [1998] F.C.J. No. 199 (F.C.T.D.); and Shaw v. Canada (2000) 167 F.T.R. 233 (F.C.T.D.).
[48] It is necessary, I think, to adopt an utilitarian approach to this, and favour the proceeding that can be used to eliminate or repair the harm resulting from the decision that was rendered. For example, there is no use in requiring that an inmate who has already served his 15-day segregation period seek to have the decision that forced this on him set aside by way of judicial review. However, when a decision is still operative, as is the Board decision in this case imposing a prohibition on contact as a condition of release, it is not only useful but necessary to proceed by judicial review in order to have it quashed. Otherwise, both the decision and its effects will drag on, with possible aggravation of the harm during the period in which the action in damages follows its course.
[49] It was this pragmatic approach that was rightly adopted by Prothonotary Hargrave in Shaw v. Canada (1997), 134 F.T.R. 128. At paragraph 23 of his decision, he writes:
[23] I do not see that a plaintiff must, in all circumstances, first bring an application for judicial review and only then, if successful, bring an action for damages. All the more so when a declaration would serve no current purpose. Further, this is not a situation in which the procedures the plaintiff employs are alternatives leading to one end: the remedies are very different. Finally, where there are several approaches or procedures a court should impose the least intrusive remedy capable of providing a cure. In summary, I can see no utility in forcing the plaintiff to try to obtain declaratory relief, concerning something that happened over a year ago, in order to then begin a second piece of litigation by which to claim damages.
Unfortunately, there is no magic formula applicable to all situations to which there is more than one remedy. Each case is sui generis, and must be assessed on its merits in order to determine the appropriate procedure.
Did the Service and the Board unlawfully provide an unauthorized person with information concerning the respondent's record?
[50] The discussion on this question bears on two pieces of information that Ms. Bélanger, the respondent's former wife, obtained. First, she learned after the hearing that Board had rendered on April 18, 1994 a decision concerning the respondent's parole. Second, she received from the Board a copy of its decisions pertaining to the respondent. Since these two questions raise different problems, I will discuss them separately.
[51] The parties acknowledge that no one knows how Ms. Bélanger managed to obtain the hearing date of April 18, 1994. Normally, this information is not available to the public, other than to a person who requested and obtained observer status under subsection 140(5) of the Act, which was not Ms. Bélanger's case. Neither the Board nor the Service was able to penetrate the mystery. As Ms. Belisle, a community liaison officer with the Board, said in her testimony, the possibility cannot be excluded that Ms. Bélanger obtained this information from persons to whom the respondent may have communicated the date: Appeal Record, vol. 2, at p. 364. There is no evidence that the Board or the Service was the source of the disclosure. In these circumstances, I do not think it is possible to impute any breach or negligence to the Board or the Service. I would add that the fact that Ms. Bélanger obtained this information remained without consequence and the respondent suffered no harm as a result.
[52] There is no dispute as to the fact that Ms. Bélanger received a copy of the Board's decisions. Counsel for the appellant conceded that Ms. Bélanger was not a victim within the meaning of section 142 of the Act and she did not question this finding by the trial judge.
[53] However, she said, the information given to Ms. Bélanger was conveyed under subsection 144(2) of the Act, under which a person need not have victim status in order to access the registry of decisions maintained by the Board. Anyone who demonstrates an interest in regard to a particular case may avail himself of this right:
| 144. (1) The Board shall maintain a registry of the decisions rendered by it under this Part and its reasons for each such decision.
(2) A person who demonstrates an interest in a case may, on written application to the Board, have access to the contents of the registry relating to that case, other than information the disclosure of which could reasonably be expected
(a) to jeopardize the safety of any person;
(b) to reveal a source of information obtained in confidence; or
(c) if released publicly, to adversely affect the reintegration of the offender into society.
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144. (1) La Commission constitue un registre des décisions qu'elle rend sous le régime de la présente partie et des motifs s'y rapportant.
2) Sur demande écrite à la Commission, toute personne qui démontre qu'elle a un intérêt à l'égard d'un cas particulier peut avoir accès au registre pour y consulter les renseignements qui concernent ce cas, à la condition que ne lui soient pas communiqués de renseignements dont la divulgation risquerait vraisemblablement:
a) de mettre en danger la sécurité d'une personne;
b) de permettre de remonter à une source de renseignements obtenus de façon confidentielle;
c) de nuire, s'ils sont rendus publics, à la réinsertion sociale du délinquant.
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And this, she says, is what Ms. Bélanger did by a written application sent to the Board on April 25, 1994.
[54] This application is exhibit P-9 in the Appeal Book, vol. 3, at p. 810. It is without a doubt a request for access to the Board's decision rendered on April 18, 1994 and it clearly indicates the applicant's interest. It was sent to the main offices of the Board in Montréal and addressed "[Translation] to whom it may concern".
[55] It is true that this request does not use the exact language of section 144 or the words "access to the contents of the registry". But it was not unreasonable for the Board to consider it as an application made under this section. It would indicate extreme formalism if a citizen in such circumstances were required to identify precisely the statutory provision on which he relies and to use the actual language enacted by Parliament. It was pursuant to this request that the Board's decision of April 18, 1994 was conveyed to Ms. Bélanger from the registry. With respect, I think the trial judge erred when he concluded that the Board had sent Ms. Bélanger a copy of the decisions concerning the respondent even before a written request for access to the registry had been made.
[56] At the hearing before the trial judge, the respondent placed great emphasis on the fact that Ms. Bélanger had not completed the form that exists and is made available to citizens in order to complete their request for access to the registry. The community liaison officer, one of whose duties is to process applications for access to the registry, testified that the form was not an essential document, that the application could be made by letter and that she thought Ms. Bélanger's letter could replace the form: Appeal Book, vol. 2, at pp. 313, 356 and 357. I see nothing irregular or unreasonable in this approach.
[57] Ms. Belisle testified that she had interpreted Ms. Bélanger's request for access to the registry as a request that was not limited only to the decision of April 18, 1994, but that also covered the Board's future decisions. She contacted the applicant who confirmed to her that her understanding was correct. Subsequently, Ms. Bélanger kept the Board informed of her changes of address so she could continue to receive the decisions: Appeal Book, vol. 2, at p. 377.
[58] The respondent objected to this procedure by the Board, in his submissions to us. He argued that a request for access to the registry had to be made for each decision. To use his own words, he argues that under the Act or the Board Policy Manual, there is "[Translation] no continuing disclosure". He bases his argument on the fact, in this Manual, there is a heading "Notification of continuing interest" in connection with the disclosure of information to victims, but there is no such heading in the section dealing with access to the registry: see sections 10.2 and 11.2 of the Manual.
[59] I think the respondent mistakes the object of the registry as well as the purpose of allowing access to persons who show an interest in a particular case.
[60] In the first place, how can an interested person make a request for access for each decision if he does not know when the Board's hearings are held? The effect of adopting the respondent's proposal would be to increase the burden on applicants and discourage access to the registry. Yet the purpose of the registry is to promote openness of decision-making and accountability of the Board: see the Policy Manual, 11.2 – Registry of decisions, Purpose. So access should be facilitated, by eliminating unnecessary obstacles and taking care not to create any.
[61] The access policy contains a number of formal and substantive guarantees to prevent abuses. For example, the disclosure of information is more limited than that made to victims under section 142. Access to decisions concerning a particular case is authorized only while an offender is serving his sentence or is subject to a long-term control order.
[62] In view of Parliament's intention in enacting section 144 of the Act, the Board cannot be criticized for adopting the liberal approach it took in relation to Ms. Bélanger's request for access in refusing to impose unnecessary and sterile formalities.
[63] For these reasons, I am satisfied that neither the Board nor the Service conveyed to Ms. Bélanger information to which she was not entitled.
Did the actions of the Board and the Service breach the respondent's rights to liberty, equality before the law and protection against any unusual treatment?
[64] Given the conclusion I have reached, that there was no transmission of information contrary to law and that the Board and the Service were not in breach of their obligations, it follows that the respondent's constitutional rights were not infringed. I would add this, however.
[65] Even supposing that the Board and the Service may have unlawfully conveyed the date of the April 18, 1994 hearing and a copy of the Board's decisions before a written request for access to the registry had been made, I do not think the amount of damages awarded is appropriate in the circumstances.
[66] I rule out forthwith any violation of section 15 of the Charter. There is no evidence that the respondent was deprived of equality before the law through discrimination, still less for any of the reasons prescribed and required by that section in order to constitute a violation.
[67] Similarly, I am unable to accept the allegation of cruel and unusual treatment contrary to section 12 of the Charter. There is nothing cruel and unusual in a person sentenced to life imprisonment being refused parole because of his risk of recidivism, having imposed relevant conditions of release related to his type of crime, or having a period of release suspended or revoked for a breach of those conditions. The treatment received by the respondent in this case does not differ from that experienced by other offenders subject to the Board's jurisdiction. I confess as well that I have some difficulty seeing the connection between the alleged illegalities and the allegations of cruel and unusual treatment. In other words, what does the cruel and unusual treatment consist of and how does it result from the disclosure of information to Ms. Bélanger? Since the Board did not render its decisions on the basis of Ms. Bélanger's letters, and in any event the reliability and persuasive value of their content had been verified, the imposition of a prohibition on contact was definitely not, in the circumstances, cruel and unusual treatment.
[68] There remains a possible violation of the rights to life, liberty and security of the person under section 7, which includes the right to privacy of information in regard to intimate questions as well as the use of personal information: B.(R.) v. Children's Aid Society of Metropolitan Toronto [1995] 1 S.C.R. 315, at p. 368; R. v. Morgentaler [1988] 1 S.C.R. 30; R. v. Mills [1999] 3 S.C.R. 668, at p. 722; Ruby v. Canada [2000] 3 F.C. 589, at pp. 661-664; and Blencoe v. British Columbia (Human Rights Commission), 2000 S.C.C. 44.
[69] In the case at bar, the unlawful breach resulting from wrongful conduct was, on the one hand, minor since the information was conveyed to a person who was eminently interested, who was entitled to obtain it under subsection 144(2) of the Act. Furthermore, this was not crucial or key information that could have influenced the decision-making.
[70] On the other hand, the breach was also made without malice since it resulted from having accepted in good faith a telephoned request rather than requiring a written request. Such conduct cannot, under the existing case law, be the basis for punitive or exemplary damages intended to express indignation about malicious or mischievous conduct. "Punitive damages," says McIntyre J. in Vorvis v. I.C.B.C., [1989] 1 S.C.R. 1085, at pages 1107-08, "may only be awarded in respect of conduct which is of such nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. ... the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment": see also Hill v. Church of Scientology, [1995] 2 S.C.R. 1130, at pp. 1205-1206; Lubrizol Corp. v. Imperial Oil Ltd. [1996] 3 F.C. 40, at p. 60 (C.A.F.); and Claude-Rolland M. du-Lude, C.D. v. Her Majesty the Queen, A-907-97, September 7, 2000 (F.C.A.).
[71] Finally, in regard to compensatory damages to repair the harm suffered by the victim of this breach, the fact is that in the case at bar the conveyance of the information to Ms. Bélanger was of no consequence to the respondent. He suffered no material damage and he provided no evidence of any such damage. At most one could speak of minimal non-economic loss which, under subsection 24(1) of the Charter, would entitle him to appropriate and just compensation in the circumstances. Taking into account the nature of the information that was conveyed, the nature of the unlawful breach, its minimal seriousness, and the context in which all of this occurred, I think an amount of $2,000 would constitute an appropriate and just compensation.
Respondent's cross-appeal
[72] For all intents and purposes, the reasons expressed on the main appeal dispose of the respondent's cross-appeal, apart from the injury to his reputation and the damages he is claiming under this head.
[73] The injury to reputation in question is alleged to originate from the two letters of Ms. Bélanger, in which she describes herself as a victim of conjugal violence and asks that the respondent, if released, be prohibited from contact with her. These, it will be recalled, were the letters of January 22 and May 16, 1994. The respondent alleges that these letters tarnished his reputation with the Board and the Service and affected him adversely.
[74] Ms. Bélanger is not a party to the respondent's action and, as the trial judge held, she cannot therefore be considered liable for these damages, if damages there were: see the decision at trial, at paragraph 32.
[75] In regard to the appellant's liability, there is no evidence that Ms. Bélanger, in sending these letters, was acting as an agent of the Service or, in any way whatsoever in the exercise of her duties. Absent any evidence of the existence of a principal/agent relationship between the appellant and Ms. Bélanger in relation to this alleged delict, the appellant cannot be held liable for the actions taken by her: see paragraph 3(a) of the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. Consequently, I would dismiss this ground of the cross-appeal.
[76] For these reasons, I would allow the appeal with costs and I would set aside the decision of the trial judge. Rendering the decision that he should have rendered, I would dismiss the respondent's action with costs. I would also dismiss the respondent's cross-action with costs. Since the appellant wrongly complied with the trial judgment pending appeal, I would order the respondent to repay to the appellant the sums received as damages and disbursements, that is, $16,461.10.
"Gilles Létourneau"
J.A.
"I concur
Robert Décary J.A."
"I concur
Marc Noël J.A."
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE NO: A-399-99
STYLE: HER MAJESTY THE QUEEN
- and -
ANTOINE C. ZARZOUR
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 27, 2000
REASONS FOR JUDGMENT BY LÉTOURNEAU J.A.
CONCURRING: Décary J.A.
Noël J.A.
DATED: December 18, 2000
APPEARANCES:
Rosemarie Millar for the Appellant
Antoine C. Zarzour The Respondent, representing himself
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada for the Appellant
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