Date: 19981125
Docket: T-2192-97
BETWEEN:
TERRANCE ANDREW MACKIE
Applicant
- and -
ATTORNEY GENERAL OF CANADA and
WARDEN OF DRUMHELLER INSTITUTION
Respondents
REASONS FOR ORDER
CAMPBELL, J.:
[1] Mr. Mackie, who has since August 11, 1978 been continuously incarcerated, first in the United States and now in Canada, was scheduled for release on parole on July 18, 1997. However, on April 15, 1997, the National Parole Board 1 ordered, pursuant to s.130(3) of the Corrections and Conditional Release Act, R.S.C. 1992, c.20 1 that he not be released before November 4, 2000, which is the expiry date of the sentence he is now serving. Mr. Mackie objects to this decision, his strongest argument being that the Board relied upon prejudicial undisclosed evidence in reaching its decision.
[2] The Board's decision was based on a finding pursuant to s.129(2)(a)(ii) of the Act that:
| (ii) there are reasonable grounds to believe that the offender is likely to commit an offence causing death or serious harm to another person before the expiration of the offender's sentence according to law;... |
On May 14, 1997, Mr. Mackie filed a judicial review application to attack this decision. However, by order dated July 18, 1997, Prothonotary Hargrave struck this application on the finding that, as a precondition to making such an application, Mr. Mackie had to complete an appeal before the Appeal Division of the National Parole Board 1 pursuant to s.147(1) of the Act. Accordingly, Mr. Mackie so appealed the Board"s decision. The Appeal Division affirmed the Board's decision. As a result, Mr. Mackie brings this judicial review application as a challenge to the Appeal Division's decision.
[3] After a lengthy hearing, wherein Mr. Renouf for Mr. Mackie and Mr. Hardstaff for the respondents presented well-prepared arguments 1, I find that the question comes down to this: Did the Appeal Division commit a reviewable error in not finding that the Board made an error respecting the disclosure of evidence pursuant to s.141(1) of the Act?
Section 141(1) reads as follows:
| 141. (1) At least fifteen days before the day set for the review of the case of an offender, the Board shall provide or cause to be provided to the offender, in writing, in whichever of the two official languages of Canada is requested by the offender, the information that is to be considered in the review of the case or a summary of that information. [Emphasis added] |
[4] During the hearing I was informed that, as a practical matter in the administration of the disclosure requirements of s.141, it is the policy of the Correctional Service of Canada and the National Parole Board that information provided by police on a parole matter not be provided to the inmate concerned, but that a "summary" be provided instead. In Mr. Mackie's case, it is only this policy that prompted a "summary" to be given. There is no suggestion in the record that the exceptions contained in s.141(4) were ever relied upon in this respect; these provisions allow the withholding of evidence on grounds of public interest or jeopardy to persons, institutional security, or lawful investigation.
[5] Therefore, solely as a result of policy considerations, prior to the hearing before the Board, Mr. Mackie was provided with a document entitled, "Criminal Profile Report" dated April 30, 1991.1 Within the meaning of s.141(1), this document was found by the Board, and subsequently the Appeal Division, to be a "summary" of information contained in a letter dated November 29, 1990 from the Brandon City Police to the Correctional Service of Canada. 1 It is agreed that the Board relied on the Brandon City Police letter in reaching its decision.
[6] Mr. Mackie's argument is that the Criminal Profile Report is not a "summary" of the information in the letter and, thus, respecting the hearing before the Board, there has been a breach of the mandatory disclosure requirements of s.141(1), and respecting the decision of the Appeal Division, there has been a reviewable error made in failing to find that a breach had occurred respecting the hearing before the Board.
[7] The grounds under which Mr. Mackie had the right to appeal to the Appeal Division to rectify the alleged breach are narrowed by the provisions of s.147(1) of the Act which reads as follows:
| 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. |
[8] While the grounds of appeal are narrowed, the powers the Appeal Division has to rectify error are broad, which by virtue of s.147(4) provide discretion to:
| (a) affirm the decision; |
| (b) affirm the decision but order a further review of the case by the Board on a date earlier than the date otherwise provided for the next review; |
| (c ) order a new review of the case by the Board and order the continuation of the decision pending the review; or |
| (d) reverse, cancel or vary the decision. |
[9] I agree with Mr. Mackie's argument that a breach of s.141(1) constitutes a failure to observe a codified principle of fundamental justice, and by s.147(1)(a) is specifically within the appeal jurisdiction and obligation of the Appeal Division to properly evaluate.
[10] The precise words in the Appeal Division's decision respecting the evaluation conducted are:
| We find that all police information or a summary of the information, which the Board has on your case file, was shared with you prior to your hearing. 1 |
[11] Mr. Renouf on behalf of Mr. Mackie has identified six separate pieces of information which appear in the Brandon City Police letter and not in the Criminal Profile Report. I find that only two of these omissions, which are both opinions expressed by the writer of the letter, are of a quality which, if unprovided on disclosure, constitute a failure to observe the statutory requirement of fundamental justice imposed by s.141(1).
[12] The Criminal Profile Report conforms with the Brandon City Police letter by setting out that, respecting Mr. Mackie's alleged criminal conduct in 1973 and 1974, he was a suspect in numerous sexual related offenses. However, the Criminal Profile Report does not include the statement found in the Brandon City Police letter that, with respect to these suspected offenses, he is "responsible for some, which were never reported to police". 1 Further, nowhere in the Criminal Profile Report is there any mention of the last paragraph of the Brandon City Police letter which reads as follows:
| In conclusion, it is my belief that MACKIE should remain incarcerated to the very last possible minute prior to mandatory release. I am sure that the public who are aware of MACKIE's past including his victims share the same opinion as myself. It is also my personal belief that MACKIE will strike again after his release. |
[13] I find that each of these two opinions are highly prejudicial to Mr. Mackie and, therefore, should have been disclosed pursuant to s.141(1) to allow him an opportunity to respond. This was not done. In my opinion, the failure of the Appeal Division to find that this nondisclosure constitutes a breach of s.141(1) is a reviewable error in law.
[14] While the Appeal Division"s decision is under review in this application, in my opinion, merely setting it aside and referring the matter back to the Appeal Division for redetermination will not satisfy the need to do justice to Mr. Mackie. Mr. Mackie is entitled to a new hearing on the merits before different decision makers. From the following quote in the Appeal Division"s decision, it appears that the Appeal Division feels constrained to achieve this result:
| Mr. Mackie, the role of the Appeal Division is to ensure that the law and Board policy are adhered to, that the Rules of Natural Justice have been respected and that the Board"s decision has been based on adequate information. It is not our role to review the available information and to simply substitute our discretion for that of a Regional Board which dutifully exercised its discretion in a manner consistent with the law and Board policy. 1 |
[15] Accordingly, to achieve the just result required, I set aside the Appeal Division"s decision and refer this matter back to the panel that made it with the direction that, pursuant to s.147(4)(c) of the Act , it order a new review of the case before a differently constituted panel of the Board, such review to be conducted forthwith.
"Douglas R. Campbell" Judge
EDMONTON, Alberta
November 25th, 1998.
[16] FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-2192-97
STYLE OF CAUSE: Terrance Andrew Mackie
v. Attorney General of Canada
and Warden of Drumheller
Institution
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: November 17th, 1998
REASONS FOR JUDGMENT: Campbell, J.
APPEARANCES:
Mr. Simon Renouf for the Applicant
Mr. W. Brad Hardstaff for the Respondents
Department of Justice
SOLICITORS OF RECORD:
Simon Renouf
Edmonton, Alberta for the Applicant
Morris A. Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the Respondents
__________________Hereafter referred to as "the Board".
Hereafter referred to as "the Act".
Hereafter referred to as "the Appeal Division".
During the course of the hearing, Mr. Renouf made arguments on the sufficiency of the evidence upon which the decision is based and also on the applicability of transition provisions in the Act which purport to require that Mr. Mackie"s sentence received in Canada, which was made under repealed legislation, is subject to the provisions of the Act . I dismissed these arguments.