Procedure and Evidence

Re Hanna - Unreported, December 5, 1988, (NSSC)

Chester v National Parole Board - (1989) 48 CCC (3d) 506, 37 Admin LA 27 (BCCA)

Editorial Note - It appears that the court's decision was at least partly due to a somewhat different characterization of the Board's function when it was deciding issues of earned remission than that adopted by the court in Hanna. Noting that counsel for the appellant had conceded that the Board was exercising an administrative function, Mr. Justice Toy expressed the view that:

Editorial Note - Whether one finds the result in Chester satisfactory, it is submitted that the BC Court of Appeal's emphasis on the function of the Board is consistent with the general approach taken in administrative law. Hanna and the cases considered therein appear to undertake more of a structural analysis than a functional one. Once determined that the Parole Board is an administrative agency the analysis proceeds in only a superficial manner.

Re McCaud - [1975] 1 CCC 168, (1964), 43 CR 252 (SCC)

Oag v The Queen et al - Unreported, October 25, 1985, No. T -2726-84 (FCTD)

28. Orders, etc, final - Any order, warrant or decision made or issued under this Act is not subject to appeal or review to or by any court or other authority.
[RSC 1970 cP-2 s23]

*Judicial Consideration* -

Re Hanna - Unreported, December 5, 1988, (NSSC)
	- Hanna's mandatory supervision was suspended and at the hearing the Board partially recreditted his earned remission to enable the applicant to complete substance abuse programs inside the institution over the next two months. The Board erred in calculating this earned remission recredit. Hanna was given back one half of his earned remission which would have resulted in his immediate release.
	The Board was made aware of its error the day of its decision. It recalled Hanna and reduced his earned remission credit to 68 days so that he would remain in the institution long enough to complete the substance abuse program.
	Nathanson, J rejected the applicant's submission that the Parole Board does not have the jurisdiction to amend its decisions and that having made a decision it is "functus".
	The court reviewed the following decisions: Dankowski v Warden of William Head Institution (1985) 14 WCB 380 (BCSC); Re Garde and The Queen (1977) 34 CCC (2d) 559 (Ont HC); Greenberg v National Parole Board (1983) 48 NA 310 (FCA); Sango v National Parole Board [1984] 1 FC 183 (FCTD); and Chester v National Parole Board -Unreported, No. CC881177, Vancouver, July 5,1988 (BCSC).
	In Dankowski it was held that the Parole Board does not have the power to modify the recredit of remission. Nathanson, J noted, however, that in Chester, which was decided by the same judge that decided Dankowski, the court ordered that the Board hold a second hearing to determine the correct number of days of remission to be given the inmate. Nathanson, J took the view that the later Chester decision overruled Dankowski.
	He concluded at p9 that:

		"I am firmly of thl9 opinion that what shines through from Carde, Sango and especially Greenberg is the concept that the National Parole Board is an administrative body and, as such, has the power to reconsider or review its own decisions. That includes the power to rectify an earlier recredit of remission."

Chester v National Parole Board - (1989) 48 CCC (3d) 506, 37 Admin LA 27 (BCCA)
	- Chester was notified by the Board on August 5, 1987 that he would be recredited with 852 rl9mission days following the revocation of his parole. Then on Sept 24, 1987 the Board notified him that they had decided to recredit only 305 days. Chester challenged the Board's jurisdiction to change its previous decision.
	Toy, J for the Court concluded that the Board did not have the power to change its earlier decision.
	On his reading of s28 of the Parole Act Toy, J concluded that the Board's decisions "were final and conclusive determinants" of Chester's parole revocation and consequent loss of 862 earned remission days, as well as the recredit of 852 remission days.
	The court reviewed the Hanna decision and the cases considered therein, but went on to adopt the proposition put forward by Lord Goddard in R v Agricultural Land Tribunal (Southeastern Area) Ex Parte Hooker [1952] 1 KB 1 (CA) at p6:

		"I am firmly of thl9 opinion that what shines through from Carde, Sango and especially Greenberg is the concept that the National Parole Board is an administrative body and, as such, has the power to reconsider or review its own decisions. That includes the power to rectify an earlier recredit of remission."

	At p13, Toy, J concluded:

		"...even if the Parole Board's first decision be considered as one containing a mistake or as one not accurately reflecting the Parole Board's intention, having pronounced and published their decision to recredit 852 days the Parole Board has no inherent power to change it at a later date."

	It should be noted that the court made it clear that it was not removing the Board's right to correct clerical errors. As stated by Toy, J at p15:

		"I add that in my opinion the mistake in this case was not a simple clerical error. If an order made by the Parole Board misspelled an inmate's name or gave the wrong inmate or record number, then an error of that type could be rectified by the Board. The decision as recorded and communicated would not be being changed by such a rectification. Such a case is different from this case where the very substance of the decision itself, as recorded and communicated to the inmate, was being changed by the Parole Board."

Editorial Note - It appears that the court's decision was at least partly due to a somewhat different characterization of the Board's function when it was deciding issues of earned remission than that adopted by the court in Hanna. Noting that counsel for the appellant had conceded that the Board was exercising an administrative function, Mr. Justice Toy expressed the view that:

		"Although it is not essential to the conclusion that I have arrived at on this appeal, I have grave doubts that where an inmate is being subjected to a loss of earned remission the tribunal can be said to be exercising merely an administrative function." (pp13-4)

	In support of his view Mr. Justice Toy referred to Employment and Immigration Commission of Canada v MacDonald Tobacco Inc (1981) 121 DLR (3d) 546 (SCC), at p550, where Chief Justice Laskin held that:

		"...it is no longer sensible to retain the old stereotyped classifications of statutory authority as being either administrative or judicial (or quasi- judicial) as providing a basis for review by the Courts in the latter case but not in the former. It is more compatible with substance to look at statutory tribunals or boards or authorities in terms of the functions which, either at large or in a particular situation, they are obliged to discharge."

	The BC Court of Appeal's emphasis on the "function" of the Board is worth noting as being consistent with the traditional general approach taken in administrative law to characterizing a tribunal when it is necessary to do so- However, it is inconsistent with earlier decisions of the Supreme Court of Canada and the Federal Courts, when compelled to characterize the nature of the National Parole Board, for purposes of determining the jurisdiction of the Federal Court of Appeal under s28 of the Federal Court Act which gives the Court of Appeal jurisdiction over matters "required by law to be made on a judicial or quasi-judicial basis". See, for example, the decisions of the Supreme Court of Canada in Re McCaud [1965] 1 SCC 168, Howarth v National Parole Board [1976] 1 SCR 453, Mitchell v The Queen [1976] 2 SCR 570 and Meldrum v National Parole Board (1981) 37 NR 541 (FCA). These cases are annotated under s6 of the Parole Act. In particular, see the Editorial Note.
	The same arguments were made in relation to the characterization of inmate disciplinary boards in the context of the jurisdiction of the Federal Court of Appeal under s28. In this regard, see Martinueau and Butters v Matsqui Institution Inmate Disciplinary Board (No. .1) [1978] 1 S;CR 118 and Martineau v Matsqui Institution Disciplinary Board (No.2) (1979) 30 NR 119. It is submitted that it is apparent that, as a matter of policy, the courts were reluctant to characterize decisions of Parole Boards or disciplinary boards as being "require by law to be made on a judicial or quasi-judicial basis" to give the Federal court of Appeal initial jurisdiction under s28 of the Federal Court Act. This would have enabled complainants to proceed directly to the Federal Court of Appeal and from there to the Supreme Court of Canada by passing the Federal Court Trial Division. Instead, the courts expanded the ambit of certiorari to enable such decision to be reached on judicial review in the Federal Court Trial Division even if they continued to be characterized as "purely administrative".
	Arguably, statutory amendments to the Parole Act and Regulations and the advent of the Canadian Charter of Rights and Freedoms provide strong ammunition for reconsideration of the earlier decisions characterizing the Board as "purely administrative". On the other hand, it is equally arguable that it is unnecessary to reopen the jurisdictional debate involving the interpretation of ss18 and 28 of the Federal Court Act so long as the Federal court Trial Division, under s18, and the provincial superior courts, under their habeas corpus jurisdiction, are prepared to recognize clearly that the functions of the Board have a significant impact on the liberty interests of inmates who appear before it and apply appropriate principles accordingly. In Hanna (supra), the court appears to analyze the function of the Board from a structural point of view as opposed to a functional one and, consequently, having characterized the Board as "administrative", the remaining analysis is somewhat superficial. On the other hand, in Chester (supra), the court recognizes the Board as being an administrative body in structure but with functions more akin to a criminal court with the power to determine the length of time a person will remain in custody and, therefore, having a significant impact on liberty interests and, therefore, attracting the applicability of the principle of "functus officio".

Editorial Note - Whether one finds the result in Chester satisfactory, it is submitted that the BC Court of Appeal's emphasis on the function of the Board is consistent with the general approach taken in administrative law. Hanna and the cases considered therein appear to undertake more of a structural analysis than a functional one. Once determined that the Parole Board is an administrative agency the analysis proceeds in only a superficial manner.
Placing the powers of the Parole, Board under the rubric of administrative, ignores to a significant degree the liberty interest of inmates who appear before the Board. Though in structure an administrative body, the Board's function is at times more akin to a criminal court in that it has the power to determine the length of time a person will remain imprisoned. In this regard it is the Board's function rather than it's structure which should be the focus of the extent to which the Board should be permitted to review' its own decisions.

Re McCaud - [1975] 1 CCC 168, (1964), 43 CR 252 (SCC)
	- This section would not be effective to bar review by the court if the Parole Board had acted beyond its jurisdiction.

Oag v The Queen et al - Unreported, October 25, 1985, No. T -2726-84 (FCTD)
	- The National Parole Board, despite the terms of this section, is exigible to the supervisory jurisdiction of the Federal Court of Canada in regard to the fairness of its proceedings, its purported exertion of its own jurisdiction and the constitutionality of its disposition. However, it is not an appropriate defendant in a claim for damages for false arrest, false imprisonment and assault and battery as a result of an authorized gating. The Board is not an appropriate defendant in such proceedings because it is not the responsibility of the state officer to answer for the state's alleged liability and it has no sufficient resources of its own to satisfy a judgment in the event that the state liability is established.

29. Evidence - Any order, warrant, decision, or certificate purporting to be sealed with the seal of the Board or to be signed by a person purporting to be a member of the Board or to have been designated by the Chairman to suspend parole or to authorize the apprehension of an inmate whose parole has been revoked is admissible in evidence in any proceedings in any court and is evidence of the statements contained therein without proof of the seal of the Board or of the signature or official character of the person appearing to have signed it.
[RSC 1970 cP-2 s24; 1976-77 c53 s33]
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