Mooring v. Canada (National Parole Board) [1996] 1 S.C.R. 75: -- Parole Board revoking accused's statutory release partly on basis of evidence gathered in manner that may have been unconstitutional

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

Constitutional law -- Charter of Rights -- Exclusion of evidence -- Jurisdiction -- Parole -- Parole Board revoking accused's statutory release partly on basis of evidence gathered in manner that may have been unconstitutional --Whether Parole Board "court of competent jurisdiction" for purpose of excluding evidence under s. 24(2) of Canadian Charter of Rights and Freedoms.

Constitutional law -- Charter of Rights -- Court of competent jurisdiction -- National Parole Board -- Exclusion of evidence -- Canadian Charter of Rights and Freedoms, s. 24.

The respondent, who had been serving a term of imprisonment following convictions for robbery and other related offences, was released on mandatory supervision and obtained work as a roofer. When responding to a call reporting that two men had been seen attempting to break into a car, police officers found the respondent in his van with another man. They searched the van and found a stolen handgun as well as what could have been housebreaking equipment. The respondent was arrested and ultimately charged with possession of housebreaking instruments, being the occupant of a motor vehicle containing a restricted weapon and possession of stolen property. When interviewed by a parole officer, he claimed that the tools and equipment found in the van were required for his profession as a roofer and that he was unaware that a gun was in the van. Following the interview the parole officer recommended that the respondent's statutory release be revoked. Proceedings on all charges against the respondent were later stayed, apparently because Crown counsel believed that the search of the van violated the Canadian Charter of Rights and Freedoms, and that evidence concerning the search would not be admissible in a trial. The Parole Board nevertheless revoked the respondent's statutory release, and the Appeal Division affirmed the Board's decision. The British Columbia Supreme Court dismissed the respondent's application for an order for relief in the nature of habeas corpus with certiorari in aid. The Court of Appeal, in a majority decision, allowed the respondent's appeal from that decision. According to the majority, the Board was a court of competent jurisdiction within the meaning of s. 24 of the Charter, with the ability to exclude evidence where such evidence was obtained by a Charter violation. The Board's decision was quashed and the respondent was released from custody.

Held (McLachlin and Major JJ. dissenting): The appeal should be allowed on the ground that the National Parole Board is not a court of competent jurisdiction for the purpose of excluding evidence under s. 24(2) of the Charter.

Per L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: A court or tribunal will only be a "court of competent jurisdiction" within the meaning of s. 24 of the Charter where it has jurisdiction over the parties, the subject matter, and the remedy sought. Even assuming that the Parole Board has jurisdiction over the parties and the subject matter, both its structure and function and the language of its constituting statute show that it is not empowered to make the order sought. The Board acts in neither a judicial nor a quasi-judicial manner. It does not hear and assess evidence, but instead acts on information. The Board acts in an inquisitorial capacity without contending parties. From a practical perspective, neither the Board itself nor the proceedings in which it engages have been designed to engage in the balancing of factors that s. 24(2) demands. In the Board's risk assessment function, the factors which predominate are those which concern the protection of society. In assessing the risk to society, the emphasis is on ensuring that all reliable information is considered provided it has not been obtained improperly. The language of the Corrections and Conditional Release Act also confers on the Board a broad inclusionary mandate. Not only is the Board not bound to apply the traditional rules of evidence, but it is required to take into account "all available information that is relevant to a case". As a result, the Parole Board lacks jurisdiction over the "remedy" within the meaning of this Court's decision in Mills. It follows that the Board is not a "court of competent jurisdiction" for the purposes of s. 24(2) of the Charter.

The law is well settled that statutory tribunals such as the Parole Board are bound by a duty of fairness in deciding upon the rights or privileges of individuals. The Board must ensure that the information upon which it acts is reliable and persuasive. While decisions of the courts on the admissibility of evidence, including admissibility under s. 24(2) of the Charter, are pertinent regarding the exclusion of relevant evidence, they are not binding on the Board. As a statutory tribunal, the Board is also subject to the dictates of s. 7 of the Charter and must comply with the principles of fundamental justice in the conduct of its proceedings. This does not mean, however, that it must possess or exercise a power to exclude evidence that has been obtained in a manner that contravenes the Charter. While the principles of fundamental justice are not limited to procedural justice, it does not follow that a tribunal that applies the rules of fairness and natural justice does not comply with s. 7.

Per Lamer C.J.: For the reasons given by Sopinka J., the National Parole Board is not a court of competent jurisdiction for the purposes of excluding evidence under s. 24(2) of the Charter. Contrary to the majority view in Mills, however, it can be assumed that the Court would now conclude that a preliminary inquiry judge is a court of competent jurisdiction for such purposes. The primary purpose of the preliminary inquiry, which is clearly spelled out in s. 548(1) of the Criminal Code, is to ensure that before an individual is placed on trial, the Crown has gathered sufficient evidence to establish a prima facie case. Since "sufficient evidence" means sufficient admissible evidence, by necessary implication the Code empowers a preliminary inquiry judge to apply the traditional rules of evidence and in some cases to exclude inadmissible evidence. Moreover, this role of the preliminary inquiry judge is clearly spelled out by s. 542(1) of the Code in the context of confessions.

Per La Forest J.: Sopinka J.'s reasons were agreed with. This case is not in any way inconsistent with the decision of the majority in Mills.

Per McLachlin and Major JJ. (dissenting): The purpose of s. 24 of the Charter is to ensure that Charter rights and guarantees are respected by providing a just and appropriate remedy for Charter breaches. The section is to be interpreted in such a way that there will always be a court of competent jurisdiction to award such relief where there is a final determination of the rights and duties of the citizen. There are a number of practical advantages to allowing administrative tribunals to decide constitutional issues in spite of the lack of formal evidentiary rules and legal training of tribunal members. The primary advantage is to ensure that a citizen can rely on Charter guarantees when the tribunal is in a position to determine the rights of that citizen. Further, the Charter issue can be dealt with in the context in which it arises without necessitating duplicate, expensive and time-consuming application to a court. A specialized tribunal in reaching its decision sifts the facts and compiles a record for the benefit of a reviewing court. The expertise and specialized competence of the tribunal can also be of invaluable assistance in constitutional interpretation. These practical advantages should not apply with any less force to a tribunal granting a remedy under s. 24 than to a tribunal declining to enforce a constitutionally invalid statutory provision.

An administrative tribunal can be a "court of competent jurisdiction" where the enabling statute grants jurisdiction over the parties, the subject matter and the remedy sought. It is clear that the Board has jurisdiction over the party and the subject matter. The remedy to be considered under the third stage of the test is the specific remedy the applicant seeks under the Charter for the breach of a Charter right, which in this case is the exclusion of evidence. The legislation governing the Board confers the jurisdiction to grant this remedy, since it contemplates that the Board must exclude from its consideration any information which is irrelevant or unreliable. The fact that the Board meets the three requirements of the test is sufficient to establish that it is a court of competent jurisdiction under s. 24 of the Charter. The governing statute also contemplates that Charter principles should be applied, as it requires the Board to observe the principles of fundamental justice in making its decision. Finally, policy considerations militate in favour of recognizing this body as a court of competent jurisdiction to grant a just and appropriate Charter remedy. The test of bringing the administration of justice into disrepute in s. 24(2) is flexible and designed to allow specific exclusionary principles to be developed in the particular context in which the evidence is being received. This limited basis for exclusion protects the right of a parolee to rely upon the constitutional guarantees and obtain an effective remedy while also providing an appropriate contextualization to the particular role of the Parole Board, whose paramount concern is public safety.

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