How to enrage the public | John L. Hill

John L. Hill

It would be shocking if it were true. On Aug. 13, 2021, the National Post ran a story headlined as follows: “Feds win battle for privacy of serial killer Paul Bernardo and cop killer Craig Munro over victims’ families’ requests.” Immediately below the headline was a provocative summary: “The families went to court for evidence prior to the killers’ parole hearings. Instead, they got a bill from the government for $19,000.”

The newspaper article was a report on an Aug. 4 decision of the Federal Court, Fraser v. Canada (Minister of Public Safety and Emergency Preparedness)  [2021] F.C.J. No. 870. The judgment of Justice Glynnys McVeigh concerns judicial reviews of six decisions, four by the Parole Board of Canada (PBC) and two by the Correctional Service of Canada (CSC), refusing disclosure of additional documentation to the families of murdered victims and to the CBC.

The judgment of the Federal Court, in minute detail, sets out how the CSC and the PBC honoured their respective obligations to reveal only those documents authorized by law and to retain the prisoner’s right to privacy of those documents precluded from public disclosure.

Although the decision of the court includes a lengthy analysis of the pertinent legislation, it could be expected that the law as enacted by Parliament as s.  4(d) of the Corrections and Conditional Release Act would be determinative. That subsection states that as a guiding principle in statutory interpretation “offenders retain the rights of all members of society except those that are, as a consequence of the sentence, lawfully and necessarily removed or restricted.” In short, privacy rights continue to be enjoyed post-conviction by all offenders regardless of their crime.

That is not to say that victims are powerless in the parole process. Victims, their families and the press can apply to be present at parole hearings and to be present during the board’s interrogation of the parole applicant. Victims are often asked to prepare Victim Impact Statements for consideration by the board. What the victims and other observers including the press are not entitled to is the privileged documentation considered by the board and shared only with the prisoner and that person’s assistant.

I have acted as an assistant in hundreds of parole hearings, and I cannot recall any instance where information not subject to public disclosure ever played a part in the decision-making process. Both the correctional service and the parole board do an admirable job in ensuring that any decision is in line with the proceedings that are open to observation. The challenge dealt with in Fraser comes from  misunderstandings of which few practitioners aside from those who practise prison law are aware.

The first is summarized by a quotation of the families’ lawyer, Tim Danson set out in the National Post article: “In my view, when people convicted of first-degree murder apply for parole and are asking to be relieved from the consequences of their life sentence and their criminal acts to be released into the public, they waive their privacy rights.” This belief not only ignores the retention of privacy rights as set out above, it also miscomprehends that parole is not a relief from the sentence but is merely a change in way the sentence will continue to be administered.

The second concern equates the parole process with the criminal process in which an open court policy is appropriate. Justice McVeigh goes to great lengths to show that it is now well established that Charter s. 2(b) has no application because parole hearings are not judicial or quasi-judicial in character.

One final note on media misinformation: the families were never sent a bill for $19,000. The judgment clearly shows that, if successful, the applicants were asking Canada to pay them $33,195.01 in costs. The respondent bill of costs was $19,142.27. In finding this was not a test case or brought in the public interest, the trial judge followed the usual order of having costs follow the cause. In this case, the costs awarded against the family litigants was the reasonable sum of $4,000.  

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. Contact him at johnlornehill@hotmail.com.

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