135. (1) Suspension of parole or statutory release - A member of the Board or a person, designated by name or by position, by the Chairperson of the Board or by the Commissioner, when an offender breaches a condition of parole or statutory release or when the member or person is satisfied that it is necessary and reasonable to suspend the parole or statutory release in order to prevent a breach of any condition thereof or to protect society, may, by warrant,

suspend the parole or statutory release;

authorize the apprehension of the offender; and

authorize the recommitment of the offender to custody until the suspension is cancelled, the parole or statutory release is terminated or revoked or the sentence of the offender has expired according to law.

         (2) Transfer of offender - A person designated pursuant to subsection (1) may, by warrant, order the transfer to penitentiary of an offender who is recommitted to custody pursuant to subsection (1) in a place other than a penitentiary.

         (3) Cancellation of suspension or referral - The person who signs a warrant pursuant to subsection (1) or any other person designated pursuant to that subsection shall, forthwith after the recommitment of the offender, review the offender's case and

where the offender is serving a sentence of less than two years, cancel the suspension or refer the case to the Board together with an assessment of the case, within fourteen days after the recommitment or such shorter period as the Board directs; or

in any other case, within thirty days after the recommitment or such shorter period as the Board directs, cancel the suspension or refer the case to the Board together with an assessment of the case stating the conditions, if any, under which the offender could in that person's opinion reasonably be returned to parole or statutory release.

         (4) Review by Board - The Board shall, on the referral to it of the case of an offender serving a sentence of less than two years, review the case and, within the period prescribed by the regulations, either cancel the suspension or terminate or revoke the parole.

         (5) Idem - The Board shall, on the referral to it of the case of an offender serving a sentence of two years or more, review the case and, within the period prescribed by the regulations, unless the Board grants an adjournment at the offender's request,

cancel the suspension, where the Board is satisfied that, in view of the offender's behaviour since release, the offender will not, by reoffending before the expiration of the offender's sentence according to law, present an undue risk to society;

where the Board is not satisfied as provided in paragraph (a), terminate the parole or statutory release of the offender if it was suspended by reason of circumstances beyond the offender's control or revoke it in any other case; or

where the offender is no longer eligible for the parole or entitled to be released on statutory release, terminate or revoke it.

         (6) Terms of cancellation - If in the Board's opinion it is necessary and reasonable to do so in order to protect society or to facilitate the reintegration of the offender into society, the Board, when it cancels a suspension of the parole or statutory release of an offender, may

reprimand the offender in order to warn the offender of the Board's dissatisfaction with the offender's behaviour since release;

alter the conditions of the parole or statutory release; and

order the cancellation not to take effect until the expiration of a specified period not exceeding thirty days after the date of the Board's decision, where the offender violated the conditions of parole or statutory release on the occasion of the suspension and on at least one previous occasion that led to a suspension of parole or statutory release during the offender's sentence.

         (6.1) Transmission of cancellation of suspension - Where a person referred to in subsection (3) or the Board cancels a suspension under this section, the person or the Board, as the case may be, shall forward a notification of the cancellation of the suspension or an electronically transmitted copy of the notification to the person in charge of the facility in which the offender is being held.

         (7) Additional power of the Board - Independently of subsections (1) to (6), where the Board is satisfied that the continued parole or statutory release of an offender would constitute an undue risk to society by reason of the offender reoffending before the expiration of the sentence according to law, the Board may, at any time,

where the offender is no longer eligible for the parole or entitled to be released on statutory release, terminate or revoke the parole or statutory release; or

where the offender is still eligible for the parole or entitled to be released on statutory release,

terminate the parole or statutory release, where the undue risk to society is due to circumstances beyond the offender's control, or

revoke the parole or statutory release, where the undue risk to society is due to circumstances within the offender's control.

         (8) Power not affected by new sentence - The Board may exercise its power under subsection (7) notwithstanding any new sentence to which the offender becomes subject after being released on parole or statutory release, whether or not the new sentence is in respect of an offence committed before or after the offender's release on parole or statutory release.

         (9) Review by Board - Where the Board exercises its power under subsection (7), it shall review its decision at times prescribed by the regulations, at which times it shall either confirm or cancel its decision.

         (9.1) Revocation of parole or statutory release - Where an offender whose parole or statutory release has not been terminated or revoked is incarcerated as a result of an additional sentence for an offence under an Act of Parliament, the parole or statutory release, as the case may be, is revoked on the day on which the offender is incarcerated as a result of the additional sentence.

         (9.2) Exception - Subsection (9.1) does not apply where the additional sentence is to be served concurrently with, and is in respect of an offence committed before the commencement of, the sentence to which the parole or statutory release applies.

         (9.3) Parole inoperative where parole eligibility date in future - Where an offender who is released on parole receives an additional sentence described in subsection (9.2) and the day determined in accordance with section 119, 120 or 120.2, as the case may be, on which the offender is eligible for parole is later than the day on which the offender received the additional sentence, the parole becomes inoperative and the offender shall be reincarcerated.

         (9.4) Non-application of subsection (9.1) - Unless the lieutenant governor in council of a province in which there is a provincial parole board makes a declaration under subsection 113(1) that subsection (9.1) applies in respect of offenders under the jurisdiction of that provincial parole board, subsection (9.1) does not apply in respect of such offenders, other than an offender who

is serving a sentence in a provincial correctional facility pursuant to an agreement entered into under paragraph 16(1)(a); or

as a result of receiving an additional sentence referred to in subsection (9.1), is required, pursuant to section 743.1 of the Criminal Code, to serve the sentence in a penitentiary.

         (9.5) Parole inoperative where consecutive sentence - Where an offender to whom subsection (9.1) does not apply who is on parole that has not been revoked or terminated receives an additional sentence, for an offence under an Act of Parliament, that is to be served consecutively with the sentence the offender was serving when the additional sentence was imposed, the parole becomes inoperative and the offender shall be reincarcerated until the day on which the offender has served, from the day on which the additional sentence was imposed, the period of ineligibility in relation to the additional sentence and, on that day, the parole is resumed, subject to the provisions of this Act, unless, before that day, the parole has been revoked or terminated.

         (10) Continuation of sentence - For the purposes of this Part, an offender who is in custody by virtue of this section continues to serve the offender's sentence.

         (11) Time at large during suspension - For the purposes of this Act, where a suspension of parole or statutory release is cancelled, the offender is deemed, during the period beginning on the day of the issuance of the suspension and ending on the day of the cancellation of the suspension, to have been serving the sentence to which the parole or statutory release applies.

[1992, c. 20, s. 135; 1995, c. 22, s. 18, c. 42, ss. 50, 69(E), 70(E); 1997, c. 17, ss. 32(F), 32.1. ]

Corresponding Regulations: Sections 163 Suspension, Termination and Revocation of Release

Martin v. Beaudry - (1995), 197 N.R. 20 (Que. C.A.)
-upheld by SCC [1996] 1 SCR 898, 197 NR 19

- The Court of Appeal dismissed the prisoner's appeal from a decision dismissing an application for habeas corpus. The Court found that the NPB did not act outside its jurisdiction when it reconsidered evidence presented at trial, even though the applicant was acquitted of the alleged charges, and although the charges were part of the cause for revocation of his conditional release. The decision of the NPB was not a defective one, and the prima facie facts did not support the remedy sought.

Kempton v. Canada - (1994), 87 F.T.R. 273 (T.D.)

- In a decision to terminate day parole, the NPB is not under an obligation to raise allegations that do not form part of the case that the Board seeks to have answered at the hearing. The NPB is entitled to define the case to be met, and their failure to provide material that does not form part of the case does not infringe s7 of the Charter.

Ewing v Mission Institution - (1994), 92 C.C.C. (3d) 484 (B.C.C.A.)

- Where an incorrect warrant of committal was issued and the prisoner was released on mandatory supervision on the basis of that warrant, then revoked as a result of conduct, the Court did not support the argument that nothing could flow from the incorrect warrant. The Court found that the warrant of committal must be considered valid until set aside and therefore the release on mandatory supervision was valid as was the loss of remission due to the failure to comply with the terms of release.

Roxborough v. Canada (National Parole Board) - (1994), 80 F.T.R. 26 (T.D.)

- Prior to the CCRA coming into effect, the prisoner was released on day parole, and subsequently had parole suspended and terminated under the Parole Act. A post-suspension hearing took place after the CCRA came into force. The transitional provisions did not provide for this situation and the Court found that the new legislation governed the post-suspension hearing given that it was the law in effect at the time of the hearing.

Ewing v Mission Institution - (1993), 20 W.C.B. (2d) 413 (B.C.S.C.), 1993 CanLII 1529 (BC S.C.)
Ewing v Mission Institution - (1994), 92 C.C.C. (3d) 484 (B.C.C.A.)

- The Court quashed an Order of the NPB for re-credit of remission following revocation of mandatory supervision. An appeal was allowed, however, on the basis that the decision quashing the Order granted certiorari, a remedy that can only be granted by a Federal Court in respect of a decision by a Federal tribunal.

Pinhero v. Canada (National Parole Board) - (1994), 24 W.C.B. (2d) 552 (B.C.C.A.)

- On the same day as the decision in Ewing (supra) and by the same panel, the Court would not consider whether the Provincial Supreme Court could hear a habeas corpus application when, on the face of the warrant for committal and on the NPB finding, the prisoner was not entitled to liberty.

R. v. Cadeddu - (1997), 11 C.R. (5th) 61 (Ont. Ct. Gen. Div.)

- The Provincial Supreme Court found that it had jurisdiction to hear a habeas corpus application where parole had been revoked.

Moore v. Matsqui Institution - (1994), 29 C.R. (4th) 353 (B.C.S.C.)

- The Court found that the NPB failed to comply with s135(5) when it breached s163 of the Regulations by not issuing a decision on a suspension within 45 days. The Court found that, the argument that the hearing was adjourned by request of the prisoner had no bearing on the Board's non-compliance, as the adjournment was requested because the board had failed to provide required materials. The Court also found that it was not appropriate to detain the prisoner once loss of jurisdiction was found for the post-suspension determination.

Fraser v. Kent Institution - (1997), 130 C.C.C. (3d) 393, 167 D.L.R. (4th) 457, 6 C.r. (5th) 293 (B.C.C.A.)

- The Court found that the board lost jurisdiction and violated the rules of natural justice by refusing to adjourn to a date when counsel for the prisoner would be available. Subsection 135(7) could not be used to avoid the process as set out in subsections 135(1) - 135(6).

Sager v. Canada - [1997] F.C.J. No. 1745 (Fed. Ct. T.D.), 1997 CanLII 5903 (F.C.)

- However, the Court held that failure to follow the process of subsections 135(1) - 135(6) does not deny the board its jurisdiction.

Lyding v. Canada (National Parole Board) - (1998), 213 A.R. 323 (Q.B.), 1998 ABQB 43 (CanLII)

- The Board does not have authority to delegate the power to adjourn to an employee, nor does the board have power to control its own process.

Armes v. National Parole Board - (1998), 147 F.T.R. 215 (T.D.), 1998 CanLII 7906 (F.C.)

- When, at the time the board considers whether or not to reincarcerate following a new charge, and there is no conviction entered, subsection (9.1) does not apply.

Woodhouse v. Elbow Lake Institution - (2000), 45 W.C.B. (2d) 99 (B.C.S.C.), 2000 BCSC 78

- Subsection (9.1) only applies where, on the date of incarceration for an additional sentence, parole has not been revoked or terminated. Where parole has been revoked, and where a habeas corpus remedy is granted restoring full parole, subsection (9.1) does not apply to automatically revoke parole.

135.1 (1) Suspension of long-term supervision - A member of the Board or a person designated, by name or by position, by the Chairperson of the Board or by the Commissioner, when an offender breaches a condition of a long-term supervision order or a condition referred to in section 134.1 or when the member or person is satisfied that it is necessary and reasonable to suspend the long-term supervision in order to prevent a breach of any condition of it or to protect society, may, by warrant,

suspend the long-term supervision;

authorize the apprehension of the offender; and

authorize the commitment of the offender to a community-based residential facility or a mental health facility or, where the member or person is satisfied that commitment to custody is necessary, to custody until the suspension is cancelled, new conditions for the long-term supervision have been established or the offender is charged with an offence under section 753.3 of the Criminal Code.

         (2) Limit on commitment - The period of the commitment of the offender mentioned in paragraph (1)(c) must not exceed ninety days.

         (3) Where offender committed - Where an offender is committed under paragraph (1)(c), the period of the commitment is included in the calculation of the period of long-term supervision ordered under a long-term supervision order, but if there is a period between the issuance of the warrant and the commitment to custody, that period is not included in that calculation.

         (4) Transfer of offender - A person designated pursuant to subsection (1) may, by warrant, order the transfer to penitentiary of an offender who is committed under paragraph (1)(c) in a place other than a penitentiary.

         (5) Cancellation of suspension or referral - The person who signs a warrant pursuant to subsection (1), or any other person designated pursuant to that subsection, shall, immediately after the commitment of the offender, review the offender's case and, as soon as possible but in any case no later than thirty days after the commitment, cancel the suspension or refer the case to the Board together with an assessment of the case.

         (6) Review by Board - The Board shall, on the referral to it of the case of an offender, review the case and, within sixty days after the date of the referral,

 (a)

cancel the suspension, where the Board is satisfied that, in view of the offender's behaviour while being supervised, the resumption of long-term supervision on the same conditions would not constitute a substantial risk to society by reason of the offender reoffending before the expiration of the period of long-term supervision;

where the Board is not satisfied as provided in paragraph (a), cancel the suspension and order the resumption of long-term supervision on any conditions that the Board considers necessary to protect society; or

where the Board is satisfied that no appropriate program of supervision can be established that would adequately protect society from the risk of the offender reoffending, and that it appears that a breach has occurred, recommend that an information be laid charging the offender with an offence under section 753.3 of the Criminal Code.

         (7) Laying of information - Where the Board recommends that an information be laid pursuant to paragraph (6)(c), the Service shall recommend to the Attorney General who has jurisdiction in the place in which the breach of the condition occurred that an information be laid charging the offender with an offence under section 753.3 of the Criminal Code.

         (8) Terms of cancellation - If in the Board's opinion it is necessary and reasonable to do so in order to protect society or to facilitate the reintegration of the offender into society, the Board, when it cancels a suspension of the long-term supervision order of an offender, may

reprimand the offender in order to warn the offender of the Board's dissatisfaction with the offender's behaviour while being supervised;

alter the conditions of the long-term supervision; and

order the cancellation not to take effect until the expiration of a specified period that ends on a date not later than the end of the ninety days referred to in subsection (2), in order to allow the offender to participate in a program that would help ensure that society is protected from the risk of the offender reoffending.

         (9) Transmission of cancellation of suspension - Where a person referred to in subsection (4) or the Board cancels a suspension under this section, the person or the Board, as the case may be, shall forward a notification of the cancellation of the suspension or an electronically transmitted copy of the notification to the person in charge of the facility in which the offender is being held.

[1997, c. 17, s. 33. ]

136. Warrant on termination, revocation or inoperability - When the parole or statutory release of an offender is terminated or revoked or where it becomes inoperative pursuant to subsection 135(9.3) or (9.5), a member of the Board or a person designated, by name or by position, by the Chairperson of the Board or by the Commissioner may, by warrant, authorize the apprehension and recommitment to custody of the offender pursuant to section 137.

[1992, c. 20, s. 136; 1995, c. 42, s. 51; 1997, c. 17, s. 33. ]

137. (1) Execution of warrant - A warrant of apprehension issued under section 11.1, 18, 118, 135, 135.1 or 136 or by a provincial parole board, or an electronically transmitted copy of such a warrant, shall be executed by any peace officer to whom it is given in any place in Canada as if it had been originally issued or subsequently endorsed by a justice or other lawful authority having jurisdiction in that place.

         (2) Arrest without warrant - A peace officer who believes on reasonable grounds that a warrant is in force under this Part or under the authority of a provincial parole board for the apprehension of a person may arrest the person without warrant and remand the person in custody.

         (3) Where arrest made - Where a person has been arrested pursuant to subsection (2), the warrant of apprehension, or an electronically transmitted copy thereof, shall be executed within forty-eight hours after the arrest is made, failing which the person shall be released.

[1992, c. 20, s. 137; 1995, c. 42, s. 52; 1997, c. 17, s. 34. ]

138. (1) Serving balance of sentence - Where the parole or statutory release of an offender is terminated or revoked, the offender shall be recommitted to custody and shall serve the portion of the sentence that remained unexpired on the day on which the parole or statutory release was terminated or revoked.

         (2) Effect of termination on parole and statutory release - An offender whose parole or statutory release has been terminated is

eligible for parole in accordance with section 120, 120.1, 120.2 or 120.3, as the case may be; and

entitled to be released on statutory release in accordance with section 127.

         (3) No forfeiture of remission - An offender whose parole or statutory release has been terminated is not liable to forfeit

any remission with which the offender was credited pursuant to the Prisons and Reformatories Act; or

any credits under the Transfer of Offenders Act.

         (4) Effect of revocation on parole - An offender whose parole or statutory release has been revoked is eligible for parole in accordance with section 120, 120.1, 120.2 or 120.3, as the case may be.

         (5) Exception - Notwithstanding sections 122 and 123, the Board is not required to conduct a review for the purpose of parole of the case of an offender referred to in subsection (4) within one year after the date on which the offender's parole or statutory release is revoked.

         (6) Effect of revocation on statutory release - Subject to subsections 130(4) and (6), an offender whose parole or statutory release has been revoked is entitled to be released on statutory release in accordance with section 127.

[1992, c. 20, s. 138; 1995, c. 42, ss. 53, 70(E); 2004, c. 21, s. 40.]

Frankie v The Commissioner of Corrections - Unreported, February 25, 1993, No. T -21-93 (FCTD) (Butterworths No. 38297)

-The applicant was relased on parole and had his parole suspended at the time when the Penitentiaty Act and the Parole Act were in force. His parole was ultimately revoked 13 days after the Corrections and Conditional Release Act ("CCRA") came into force. Generally, s127 CCRA sets out the calculation of statutory release dates. Section 138 deals with the applicant's situation, who was under suspension of parole at the time the CCRA came into effect. The applicant argued that the time described by the words "the portion of the term of imprisonment that remained unexpired on the day on which parole was ...revoked" in s138 must be calculated by excluding therefrom any earned remission standing to the inmate's credit on the day parole is revoked. The applicant argued that this interpretation applied in his situation where parole was suspended before but revoked after the CCRA came into effect. The court held that under the CCRA, when either parole or statutory release is cancelled, an inmate will be returned to custody to serve the rest of the sentence of imprisonment which was initially imposed by the court subject to the establishment of a new statutory release date. The new statutory release date is determined by calculating forward from the time the inmate was first committed to custody (ie, had his parole or statutory release suspended). In the applicant's case, his new statutory release date was determined by calculating two thirds of time remaining, starting from the date that he was taken into custody and his parole suspended and ending with the date of his imprisonment as originally imposed by the court. Two thirds of that period of time must be spent in custody before he could again be released pursuant to the statutory release provisions.