Mymryk v. Canada (Attorney General)

[2010] F.C.J. No. 779

2010 FC 632

Federal Court

Martineau J.

June 10, 2010

Mymryk, the applicant, served a life sentence for first degree murder. In 1996, Mymryk had his full parole revoked after he was convicted for carrying a concealed weapon. In 2004, Mymryk had his day parole revoked after failing a urine test in which he tested positive for cocaine. In 2007, Mymryk was involuntarily transferred from a minimum security institution to a medium security institution due to allegations that he was involved in smuggling/trafficking and using drugs inside the institution.

In 2008, the Parole Board denied him parole because of his earlier parole revocations, his alleged drug activities, and the reports of his case managers. The Board did not provide Mymryk copies of three intelligence reports regarding his alleged drug trafficking in the institution. The reports are dated from December 2005, October 2007, and November 2007.

Mymryk appealed the decision of the Board on the ground that the Board's decision violated procedural fairness and was based on incomplete and erroneous information. Mymryk argued that there were several considerations that the Board did not give sufficient attention to. These considerations included the evidence concerning the unreliability of the negative urine test in 2004. The Appeal Division affirmed the decision of the Board. The Appeal Division found that the Board had sufficient relevant, reliable, and persuasive information before it to make its decision.

Mymryk brought the within application for judicial review in respect of the Appeal Division's decision. Mymryk argued that the Board failed to observe a principle of natural justice or procedural fairness in failing to communicate sufficient information to him so as to allow him to properly defend himself in respect of the allegations of drug trafficking. He also argued that it was unreasonable for the Board to deny him any form of release since that was not the least restrictive measure applicable in the circumstances (which is required by the legislation).

The Court noted that, in reviewing the Appeal Division's decision to affirm the Board's decision, it was essentially required to ensure the Board's decision was lawful. The Court summarized the document disclosure that was at issue. There were only three security intelligence reports that were not shared with Mymryk. The Court found it was clear that the Board had relied on these reports in coming to its decision to refuse his applications for parole. The Court stated that a central aspect of the duty of procedural fairness is the right to know the case to be met. In addition, section 141 of the Corrections and Conditional Release Act permits the Board to withhold information from the offender but the Board is only entitled to withhold "as much information as is strictly necessary". The Court stated that fundamental justice requires the Board to provide the offender with the details of the relevant information upon which it will base its decision.

The respondent Attorney General of Canada argued that the "gist of the reports" was shared with Mymryk through memoranda that were disclosed to Mymryk. The Attorney General relied upon Cartier v. Canada (Attorney General), [2003] 2F.C. 317 where the inmate was given summaries of the information compiled against him and those summaries were found to meet the duty of procedural fairness. The Court found that Cartier involved different circumstances than this case. For instance, in the summaries provided to the applicant in Cartier, he was informed of a number of significant details. That was not the case for the allegations against Mymryk. There were minimal details provided to Mymryk in the memoranda.

The Court found that Mymryk did not have a real opportunity to defend himself and he was denied sufficient procedural fairness in the circumstances. Given the Court's conclusion on that issue, the Court did not find it necessary to determine the reasonableness of the decision to deny him any form of release. The parties to the application agreed that the appropriate remedy was to quash the decision of the Appeal Decision and order that a newly constituted Board conduct a new hearing. The Board was to consider the direction that it cannot rely or give any weight to the allegations that Mymryk was involved in the trafficking of contraband unless supplementary information is shared with Mymryk prior to the new hearing taking place.

In the result, Mymryk's application for judicial review was successful.