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Post-Suspension Hearing

20. (1) Where, in the case of a federal inmate,
(a)	Parole granted to the inmate or release subject to mandatory supervision has been suspended,
(b)	the inmate is in custody, and
(c)	the inmate's case has been referred to the Board pursuant to subsection 16(3) of the Act,
the Board shall not terminate or revoke the inmate's parole or revoke the release subject to mandatory supervision until a period of fifteen days has elapsed following receipt by the Board of the referral, unless the period has been waived in writing by the inmate. [SOR/81-487; SOR/86-917]
(2) Where the case of an inmate has been referred to the Board pursuant to subsection 16(3) of the Act and that inmate has applied for a hearing in respect of the referral during the period referred to in subsection (1), the Board shall
(a)	commence a hearing as soon as practical following receipt by the Board of the application; and
(b)	inform the inmate of the date of the hearing at least fourteen days before the date the hearing is to commence.
Judicial Consideration -
See also cases annotated under s16 of the Parole Act and s7 of the Charter.
Re Stevens v National Parole Board - [1979] 2 FC 279 (FCTD)
	- Under s9(1) of the Parole Act it was held that Regulation 20(1) of the Parole Regulations stipulating that a decision shall not be made within a certain time is not a regulation prescribing the time within which a decision must be made within the meaning of s9(1)(k) of the Act. It is the opposite of what is authorized and does not fall within the power delegated by s9(1) (k) and is therefore ultra vires. Further, the general power to make regulations delegated by s9(1) (0) cannot be construed as authorizing this regulation because this regulation does not deal with an "other matter" but rather with a matter authorized to be dealt with by s9(1) (k). The power to make regulations "necessary...to facilitate the carrying out of" the Parole Board's function being general, cannot be construed as authorizing the making of a regulation with the opposite effect to one which is specifically authorized.
Dubeau v National Parole Board - Unreported, May 29th, 1980 (FCTD) [now reported at (1980), 4 WCB 476]. An appeal to the Federal Court of Appeal was dismissed because the "substratum of the litigation" had disappeared -Unreported, Federal Court of Appeal, October 20th, 1981, No. A-420-80 (FCA).
	- A prisoner was granted parole on condition that he obtain the approval of his parole officer before incurring debts by borrowing money or installment buying. Several months later, he was accused of breaching this condition by his parole officer and made to sign the special instruction advising him that if he breached the condition, his parole could be suspended. Later on the same day, he was arrested and charged with several criminal offences. He plead not guilty to the charges. Several weeks later his parole was suspended and he was recommitted to custody and he applied for a post-suspension hearing. At the hearing before the Board, he was asked questions about the pending criminal charges and he asked for his lawyer to be present. His request for legal representation was refused and he refused to continue to answer questions. The Board appeared more interested in the charges than in the earlier violation of the condition of his parole. Nevertheless, at the conclusion of the hearing, his parole was revoked and he was advised in writing that the reason for the revocation was the breach of the condition of his parole regarding borrowing or installment buying. He applied for certiorari to quash the revocation. The court ruled that the National Parole Board is an administrative body having a duty to act fairly. The court held that the Parole Board members should not have questioned the parolee about the criminal charges in the circumstances and that to refuse to allow him to have legal counsel present during the hearing was unfair treatment.
Editorial Note - The above noted case contains a good discussion of the right to counsel before statutory administrative tribunals involving serious consequences to the individual affected and distinguishes between this kind of National Parole Board hearing and internal disciplinary boards such as in Martineau v Matsqui Institution Disciplinary Board (No.2) (1979),50 CCC (2d) 353, 106 DLR (3d) 385,30 NR 119 (SCC) and Fraser v Mudge [1975] 3 All ER 78 (CA). The fact that the parolee was placed in a position where he might be required to incriminate himself while denied counsel, protection against self-incrimination and other constitutional safeguards contrary to s2(d) of the Canadian Bill of Rights should also be noted.
Calvin v National Parole Board (No.2) - Unreported, August 20th, 1980 (FCTD)
	- A parolee was charged with a criminal offence and his parole suspended. He requested a post-suspension hearing and legal representation at the hearing. At the post-suspension hearing, he repeated his request for counsel and when denied, sought an adjournment of the hearing or at least an adjournment of the decision pending the decision of the criminal courts on the charge. The Board refused. He was subsequently acquitted of the charge in the criminal courts on a no evidence motion and an appeal by the Crown from the acquittal in the British Columbia Court of Appeal was similarly dismissed. He applied for certiorari to quash the parole revocation. The court held that although there is no absolute right to be represented by counsel at hearings before the National Parole Board, this did not mean that there might not be proper cases where the National Parole Board, in its discretion, might permit representation nor did it mean that there might not be cases where the Board ought, in the particular circumstances of the case, as a matter of "natural justice", permit legal representation. The court found that in the peculiar circumstances of the case, the Board had not acted fairly in refusing legal representation and quashed the revocation.
Editorial Note - Once Calvin's revocation was quashed, the question arose whether or not he continued in custody on suspension and the Board was obliged to conduct a further post-suspension hearing or whether the suspension would also be invalid and he would be entitled to his release. The question did not come before the courts because the National Parole Board subsequently cancelled his suspension and he was released once again on full parole. In addition, it should be noted that he was serving an indeterminate sentence subject to parole as a dangerous sexual offender and as such was entitled to have his case reviewed by the National Parole Board on an annual basis. Prior to his review the year following his revocation, he applied for mandamus under s17 of the regulations (see annotation under s17), went through an "information sharing session" with the Board members which was not satisfactory from his point of view, and went through a review after which the Board offered him two days per month. By this time he had been back in custody a period of 16 months since his revocation and he then applied to quash that revocation. See Morgan v Director of Stony Mountain Institution, annotated under section 16 of the Parole Act, to the effect that upon quashing of a revocation warrant, the warrant of suspension does not revive to justify detaining the parolee in custody. The warrant of suspension lapses upon the issuance of a warrant or order of revocation.
See also Re Mason and The Queen (1983), 7 CCC (3d) 141 (Ont HC) to the same effect that a warrant of suspension is spent on a decision to revoke, whether or not that latter decision is valid in law.
Judicial Consideration -
Morgan v. National Parole Board - (1982), 40 N.R. 471, 65 C.C.C. (2d) 216 (F.C.A.)
	- The applicant parolee was arrested by the police and charged with possession of stolen property found in a room occupied by him at a halfway house and he was awaiting his preliminary hearing. His parole was suspended on the same day and he was informed in writing that the ground for suspension was that he had left the halfway house without permission. He requested a post-suspension hearing and although he contacted his lawyer to ask that he appear at the hearing, he believed that lawyers could not appear at such hearings. Just prior to entering the hearing he was informed by another prisoner that the Parole Board could not consider outstanding criminal charges without a lawyer being present. Regulation 20.1 providing for the right to assistance at hearings, came into effect after the suspension of the applicant's parole but before the hearing. No counsel was present at the hearing and allegations of criminal conduct among other things were considered by the Board. No notice was given to the applicant that criminal allegations were going to be considered at the hearing. The applicant was not informed of his right to counsel nor was he offered an adjournment to obtain counsel before he was invited to speak on the matters in respect of which the criminal charge was pending and he was awaiting trial. The Board subsequently revoked his parole because he had left the halfway house without permission and because, in their view, his arrest was highly indicative of his involvement in criminal behaviour. He was informed of his right to request a re-examination of the decision under s22 of the Regulations. He applied to the Federal Court Trial Division for certiorari to quash and that application was dismissed. On appeal to the Federal Court of Appeal, the appeal was allowed and the order of revocation quashed. The court held that the Board in exercising its undoubted power to revoke parole had failed to observe its duty to proceed in a manner that was fair to the applicant having regard to the provisions of the Parole Act and the statutory regulations. The court noted Regulation 20(2)(b) as prescribing that an inmate in such a situation is entitled to at least 14 days notice of the date fixed for the commencement of the hearing and commented that the only conceivable purpose of such a provision was to give the inmate an adequate opportunity to prepare to deal with the subject matter to be raised at the hearing. The Board failed to meet its obligation to proceed fairly in that it only notified the applicant of one violation and then he was faced at the hearing with additional subject matter in respect of which he was not only given no prior notice, but was not offered an opportunity to consider his course or prepare his response. The situation was aggravated by the fact that the subject matter was not merely something additional but was behaviour in respect of which a criminal charge was pending and the defence of which might well be jeopardized by any response by him or his failure to make a response at the hearing. This was plainly an occasion, if the procedure was to be fair, for advance notice of the subject matter that would be raised to be given and failing such advance notice, for the Board not to sit and wait for the applicant to object, but to offer him an adjournment to consider his position with respect to it. It was unfair to go into the subject matter without prior notice and without offering the applicant an adjournment to consider his position. The court went on to say that although Regulation 20.1 does not require the Board to inform the parolee of his right to counsel, it was nevertheless a further aggravation of the unfairness for the Board, knowing of the recent amendment of the Regulation conferring such a right, to refrain from apprising the applicant of it. The court stated further that the right to a re-examination under s22 of the Regulations was not a substitute for certiorari because it was not a procedure conducted on the same principles.
Sango v National Parole Board - Unreported, January 26th, 1982, No. A-669-81 (FCA)
	- This case was decided at the same time as Morgan (supra) and the issue was the same and the facts were similar. The precise facts are not stated but the court said that this case was even stronger than Morgan. The appeal was allowed for the reasons given in the Morgan appeal.
Brook v The National Parole Board - Unreported, March 14, 1984 No. T -484-84 (FCTD)
	- The applicant's parole was suspended and the reasons given on the documents signed by him in applying for a post-suspension hearing indicated that the suspension was because "he was believed to have become involved in criminal activity". At the hearing he was questioned regarding a number of additional matters regarding his finances, work history and travel as well as about the criminal records of persons with whom he had associated. He sought certiorari to quash the revocation challenging the adequacy of the notice given claiming that he only expected to be questioned regarding the new charges laid against him. The court held that the notice was sufficiently broad to cover all of the issues the applicant alleged he did not have notice of and that in any event the reasons for revocation only referred to the re-involvement of criminal activity and not the other matters discussed and consequently, there was no prejudice to the applicant. The notice was therefore held adequate and the application dismissed.
Roach v National Parole Board - Unreported, November 27th, 1981, No. CC811260, (BCSC)
	- It was held that the provisions of Regulation 20 and, in particular, the requirement that the parolee be informed of the date of the hearing at least 14 days before it commences, are mandatory provisions and a failure to comply with same will result in a subsequent order of revocation being a nullity. The court also held that once the order of revocation was quashed the warrant of suspension and apprehension did not revive. Once the applicant was dealt with pursuant to ss16 and 20 of the Parole Act, the warrant of suspension and apprehension lapsed. The court also held that s6 of the Parole Act does not apply in that the Board purported to act pursuant to ss16 and 20 of the Act.
Editorial Note - An appeal to the BC Court of Appeal was abandoned as moot when Roach was arrested on another matter.
Lacker v National Parole Board - Unreported, April 11, 1983 No. T -766-83 (FCTD)
	- On an application for certiorari where the applicant claimed that he had not received fourteen days notice of hearing pursuant to Regulation 20(2)(b) the court held that the affidavit from the Board member in response was not sufficiently clear as to the fact that fourteen days notice had been given before the hearing and therefore granted the application. The revocation of the applicant's mandatory supervision was quashed and he was discharged to continue on mandatory supervision.
Couperthwaite v National Parole Board - (1982) 31 CR (3d) 50 (FCTD)
	- At the commencement of his full parole hearing the prospective parolee requested that he and his counsel be permitted to be present throughout the whole of the hearing including the initial stage of the hearing which, according to Parole Board policy in existence at that time, involved presentations to the Board by Correctional Services of Canada staff. The Board refused and on an application for mandamus the Order was granted. The Court held that the meeting of the Board with staff officers immediately before the inmate and his assistant are admitted to the hearing is so closely connected with the purpose of the hearing that what takes place at such a meeting may have some influence on the decision subsequently made by the Board and consequently such a meeting should properly be regarded as being part of the parole hearing, and in accordance with the principle of procedural fairness the parolee is entitled to be present throughout the hearing in order to hear the case against him and have a full opportunity to reply.
See also Re Martens and R (1984) 8 CCC (3d) 336, 35 CR (3d) 149 (BCSC) an- notated under s16 of the Parole Act.
Latham v Solicitor General of Canada et al - (1984) 12 CCC (3d) 9 (FCTD)
	- The applicant day parolee, after discussions with this parole officer, voluntarily returned himself to the institution in the belief that he would not be revoked if he did so because a revocation would have had the effect of cancelling some 1800 days of earned remission. Nevertheless, a warrant of suspension was issued "to prevent a breach of a term or condition of parole". He applied for a post-suspension hearing and the Violation Report gave as its reasons for suspensions "to prevent a breach of a term or condition of parole" and included a summary as to how the violation occurred simply saying "A Child Welfare matter involving Latham and his step-daughter in which police requested our involvement". There were no specified conditions on the applicant's parole certificate other than reporting requirements. Just prior to the hearing the parole officer and classification officer met with the Board panel members in the absence of the applicant and they claimed that this was to discuss "surrounding confidential Police Information", At the hearing the applicant requested to know the information the Board was considering and was simply told that the board had all the information they needed. The Board claimed that it had shared its concerns with the applicant and his assistant and he was given an opportunity to respond. The applicant was then asked to withdraw and the parole officer and classification officer remained in the Board hearing room while a decision was reached and the applicant invited back in to be told his day parole was being revoked. In the written reasons for decision the Board indicated that the revocation was "to protect society". The applicant also claimed that he had tried to obtain counsel prior to the hearing but was unable to do so. The decision was subsequently confirmed by the Internal Review Committee on re-examination. The applicant applied to quash the revocation decision. The decision was quashed on the following grounds:
	(a)   The assertion by the Board members that information was shared with the applicant and his assistant at the commencement of the hearing and that they were given an opportunity to respond was quite inadequate to establish that he was properly informed as to the nature of the allegations under consideration by the Board. The procedure adopted by the Board did not meet the standards of fairness appropriate to the situation bearing in mind in particular the consequences to the applicant of a potential loss of freedom of some two and a half to five years. The major denial of fairness flowed from the failure of the Board to notify the applicant adequately of the reasons for which revocation was being considered and to give him an opportunity to answer the allegations. While there may be considerable overlapping between revocation reasons based on a past breach of terms of parole and those based on a need to protect society, they are different in their time orientation and their emphasis. In preparing himself for a revocation hearing it is important that the applicant know the main focus of the Board's preoccupations. The notice to the applicant of the reasons for possible revocation were inadequate and unfair in that the warrant of suspension specified one ground and the Violation Report the same ground but the reasons gave a different ground. They were also unfair in not specifying more precisely the nature of the information the Board had gathered to enable the applicant to comment on them.
	(b)   With respect to the disclosure of the confidential information it was held that while Regulation 17(3) might be legally effective, to limit a common law fairness requirement, it would not be effective in limiting the right of a parolee under s.7 of the Charter. "Liberty" is at stake when one is threatened with revocation of parole and fundamental justice requires procedural fairness commensurate with the interest affected. The fairness requires at least an outline being given to the person affected of the allegations being considered by a tribunal in deciding whether to deny that person his liberty. A law which purports to deny even this is not a reasonable limitation within the meaning of s.1 of the Charter of rights guaranteed in s.7 of the Charter. Section 17 of the Parole Regulations should therefore not be applied in a manner to deny this right. Neither the evidence nor the argument demonstrated on the facts that s.17 was invoked for this purpose and it cannot be so invoked.
	(c)   Prima facie the exclusion of the applicant from much of the hearing also amounted to a denial of fairness. The applicant was available and waiting outside and there was no justification for the exclusion save perhaps that of confidentiality. The Board in future proceedings will have to demonstrate that some law exists which limits the right to be present, otherwise guaranteed under s.7 of the Charter, and that as applied the law represents a reasonable limitation on that right.
	(d)   Section 10(b) of the Charter does not apply to the circumstances but only covers situations involving initial arrest or detention. Otherwise, in the context of prisons there would be a continuing duty, day by day, for prison authorities to advise inmates of their right to counsel. However, the guarantee in s.7 of the Charter requires that a parolee should have every reasonable opportunity to be represented by counsel at a revocation hearing. The consequences of revocation indicate that a fair procedure requires that such an inmate should have counsel if he so wishes and if he can find counsel willing to serve. Sufficient time should be assured to him to make all reasonable efforts to achieve this. There was no denial of counsel by the Board on the facts and the decision here could not be quashed on the ground of failure to notify him of his right or a denial of that right. However, the Board cannot remain in- different as to whether a parolee has counselor not in such circumstances. It has a duty to provide a hearing which is fair and the presence of counsel in a matter of this gravity will be an important factor in assuring such fair process. If the Board proceeds in future with hearings such as these involving such grave consequences and is not able to demonstrate that it took some initiative to give the parolee every reasonable opportunity to retain counsel, the integrity of its processes will, in the court's view, be vulnerable to attack on the ground of denial of fairness.
	(e)   Section 7 of the Charter was intended to guarantee only procedural r justice of fairness and does not contain substantive content and, consequently, it could not be argued that s.20 of the Parole Act in itself was contrary to fundamental justice and therefore s.7 of the Charter.
Hewitt v. The National Parole Board et al - Unreported, November 28, 1983 No. 3217/83 (Man. Q.B.)
	- An application for habeas corpus with certiorari in aid on grounds that a post-suspension hearing was fatally affected by procedural unfairness to the extent that the Board interviewed the parole officer and classification officer prior to the applicant entering the room at the hearing and that those officers remained in the room after the applicant left, was dismissed on jurisdictional grounds. The court took the position that even if the judgment of Ritchie, J. in Mitchell v. The Queen, (1976), 2 S.C.R. 570 was not the opinion of the majority, nevertheless support for those reasons were found in the reasons of the majority delivered by Pigeon, J. in Commonwealth of Puerto Rico v. Hernandez (1975), 1 S.C.R. 228, which was referred to by Ritchie, J. in Mitchell. The court was of the view that those decisions should be followed as opposed to the decision of the Ontario Court of Appeal in Re Miller and The Queen (1982), 70 C.C.C. (2d) 129 and the decision of the B.C. Court of Appeal in Re Cardinal and Oswald and The Queen (1982), 67 C.C.C. (2d) 252. The court stated that if the applicant was to succeed, the review proceedings and the decision to revoke the parole would have to be set aside and quashed and that this could only be done by way of certiorari against the National Parole Board which was within the exclusive jurisdiction of the Federal Court Trial Division under s.18 of the Federal Court Act.
R v Scott - Unreported, March 15, 1984, Vancouver, No. CAOO2011 (BCCA)
	- While in the Bishop case, supra, the applicant was on parole, in this case the applicant was on mandatory supervision. A similar argument was made and the Court ruled that the reasoning in Bishop applied to a person on mandatory supervision in the same way as it applies to a person on parole and the time during which the parole was suspended and the applicant was not in custody was not to his credit under s20 and that s20(2)(b) makes this very clear. In addition, the Court held that the provisions of ss15 and 20 of the Parole Act make it clear that earned remission can be taken away by the Parole Board under these ss. The applicant had argued that he had earned the remission and that it could not be taken away except in accordance with the provisions of ss24.1 and 24.2 of the Penitentiary Act.
Hewitt v National Parole Board - (1984) 5 Admin LA 100 (FCTD)
	- When the Manitoba Queen's Bench declined jurisdiction, Hewitt applied to the Federal Court Trial Division to quash the parole revocation decision based on the facts noted above. The Court held there was a denial of fairness and fundamental justice in breach of s7 of the Charter, and the procedures followed at the post-suspension hearing were not demonstrably justified in contemplation of s1 of the Charter. The fact that Hewitt had since the post-suspension hearing been convicted of two offences and received new sentences, could not have the affect of homologating, the unlawful procedure of excluding him and his counsel from portions of the hearing and consequently, the results of the hearing were quashed.
Lennox, Duncan and Lutz v National Parole Board - (1985) 43 CR (3d) 356 (FCTD)
	- In circumstances where the applicants had been suspended, reviewed under s16 of the Act and referred to the Board requesting a post-suspension hearing having waived the fourteen-day notice requirement in Regulation 20(2)(b) and where there was evidence that the Board had attended at the institutions where the parolees were in custody but had not given them a hearing at that time and where there was no explanation before the court on the record as to why no such hearings had been held when the Board was at the institution, the suspensions were quashed on certiorari as amounting to undue delay contrary to the terms of Regulation 20(2)(a) which requires a hearing to be held ''as soon as practical" and contrary to natural justice. However the court pointed out that this did not necessarily mean that the Board lost jurisdiction as they could still resort to s10(1)(e) of the Act if they desired to do so.
In Re Conroy - (1983),5 CCC (3d) 501 (Ont HC)
	- The revocation of a parole, that has been suspended under s16 of the Act, without a hearing, violates this section and in the result violates the rights, under s7 of the Charter of the parolee.
Re Mason and The Queen - (1983), 7 CCC (3d) 141, 35 CR (3d) 393 (Ont HC)
	- The entire statutory framework of the Parole Act in relation to revocation of mandatory supervision and parole and of these Regulations ss20 through 23 were considered in a situation where two Board members at such a hearing were unable to agree and a third member assigned by the Chairman cast his vote in the absence of the applicant or his assistant and without hearing submissions. The court held that this was fundamentally unjust and not fair and decent and that the third member should have been present at the hearing or at a new hearing before each member necessary to constitute a full panel. In those circumstances the court held that Regulation, s24(2) to the extent that it permitted this procedure to occur was in violation of s7 of the Charter and by virtue of s52 was of no force and effect.
Ziatas v National Parole Board - (1983), 70 CCC (2d) 381 (FCTD)
	- The Board cannot simply terminate a day parole without a hearing under s10(2) of the Act If the day parole has been suspended under s16 and referred to the Board. In those circumstances the provisions of Regulations, ss20 and 20.1 must be complied with. The only alternative to the Board would be to cancel the suspension under s16 and then proceed to exercise its independent power under s10(2).
R v Carlson - Unreported, September 14, 1984, No. XO1150 (BCSC)
	- Statements made by an accused parolee at post-suspension hearings is not admissible in pending or subsequent criminal proceedings as the admission of such evidence would violate s13 of the Charter. The parolee, in giving a statement on his own personal behalf at a parole hearing is sufficiently akin to an ordinary witness testifying in some proceedings so as to preclude the admissibility of such evidence on a subsequent or other proceeding.
Henderson v National Parole Board and Warden of Matsqui Institution - Unreported, November 2,1987, No. CC981788, Vancouver (BCSC)
	- The applicant sought habeas corpus with certiorari in aid to quash the decision revoking his mandatory supervision.
	After the applicant was apprehended and re-committed to custody, he was interviewed by a parole officer pursuant to s16(3) of the Parole Act and s20(1)(c) of the Parole Regulations. The parole officer stated that he had advised the applicant of the reasons for the suspension and the gist of the evidence upon which those reasons were based and that the applicant denied involvement in the alleged activities or any violation of his conditions and during the course of this denial, expressed anger and walked out of the Interview saying, "To hell with it. Do whatever you want." This occurred prior to the officer being able to put before the applicant a form which indicated whether or not the applicant wished to have a hearing before the Board or waive such a hearing. The officer said that he had asked the applicant to sign the form and it was at that point when the applicant made the comment alleged. Subsequent to this interview, the parole officer did not cancel the suspension under s16(3) but referred the case to the Board and the Board then revoked the applicant's parole.
	Between the time of the interview by the parole officer and the Board's decision to revoke, there was no communication with the applicant to determine whether or not he wished to apply for a hearing. Apparently, the applicant did not receive the telex communicating to him the decision to revoke. The applicant had availed himself of the appeal under s22 of the Parole Act and that body upheld the original decision of the Parole Board.
	The court concluded that the evidence did not support that the parole officer had unequivocally told the applicant that it was his Intention not to cancel the suspension but refer the matter to the Board. The court interpreted the applicant's comment as simply meaning that the applicant would use the most discourteous language and you can either cancel my suspension or you can refer it to the Board but it's for you to decide. The applicant's comment could not be construed as a waiver of his entitlement to a hearing. Furthermore, the application for a hearing does not arise until after the reference to the Board has been made. Before the matter is referred to the Board, the prisoner simply cannot apply for a hearing.
	Furthermore, the fact that the applicant had availed himself of the appeal provisions did not amount to a waiver either. The Appeal Board does not conduct a hearing at which the prisoner is entitled to be present and be heard in person but rather, conducts its proceedings in writing. This is not a substitute for the original hearing before the Board. The court concluded that at common law, there was a denial to the applicant of the opportunity to apply for a hearing.
	The court then went on to consider whether, in light of that decision, the applicant should be restored to mandatory supervision or the suspension restored. The court compared the decision of the Ontario High Court in Re Conroy (1983) 5 CCC (3d) 501 which concluded that once the revocation was quashed the suspension remained in force, with the decision of the Manitoba Court of Appeal in Morgan v The Director of Stony Mountain Institution (1983) 1 CCC (3d) 436 where that court concluded that the suspension warrant had been spent upon the revocation and when the revocation warrant was quash- ed, it cannot be revived. The court chose to follow the decision of the Manitoba Court of Appeal in preference to the decision of the Ontario High Court and granted the application restoring the applicant to mandatory supervision.
R v Smith - (1988) 68 CR (3d) 92 (Ont HC)
	- At a parole suspension hearing before the Ontario Provincial Parole Board, the applicant requested an adjournment to consult counsel and to arrange for representation before the Board. This request was denied and the applicant's parole revocation confirmed. The applicant sought habeas corpus with certiorari in aid to quash the decision a secure his release.
	At the hearing before the court, it was not contested that there ought to have been an adjournment at the parole hearing and that the applicant ought to have been afforded access to counsel. The respondent had already offered the applicant a hearing with counsel before a reconstituted Board but the applicant had declined to accept that offer. At issue was the appropriate remedy to be awarded by the court.
	The court found that there is no right to counsel in such circumstances before the Parole Board at common law, relying upon Howarth v National Parole Board [1976] SCR 453, 3 NR 391 (SCC) and Fraser v Mudge [1975] 3 All ER 78 (CA).
	However, the court found that s7 of the Charter provides the rights in such circumstances such as a right to an in-person hearing (Re Cadeddu and The Queen (1982) 4 CCC (3d) 97 (Ont HC)); to minimum notice of the allegations against the inmate (Re Latham and Solicitor-General of Canada (1984) 12 CCC (3d) 9 (FCTD)); and most importantly, the right to counsel at hearings involving parole revocation (Kennedy v National Parole Service [sic], unreported, August 12, 1985, FCTD, at p12; and Re Latham, supra, at p20).
	It was held that the Ontario Provincial Parole Board had violated the applicant's s7 Charter rights and committed an important procedural error. However, the court declined to set the applicant at liberty holding that a determination of the merits of the parole revocation should properly take place before the Parole Board. Notwithstanding prevailing legal authority that the warrant of suspension is spent upon the further decision of the Board to revoke and notwithstanding that this court's decision to quash the revocation would therefore normally result in the applicant being put at liberty, nevertheless, the court, using s24 of the Charter ordered that the applicant remain in custody pending a re-hearing to be held expeditiously before a different panel of the Board.
Osborne v National Parole Board - Unreported, March 16, 1990, No. T-199-90 (FCTD) (Butterworths No. 33966)
	- Osborne was given notice of his July 26, 1989 post-suspension hearing on July 25, 1989. At the commencement of the post-suspension hearing the applicant orally waived the 14-day notice requirement which is to be given to persons who are subject to post-suspension hearings. The applicant argued that waiver of the notice requirement is not possible under the terms of s20(2) of the Parole Regulations which provides that the inmate "shall" be given at least 14 days notice of the hearing.
	In dismissing the application Reed J noted that Osborne had requested the decision to be reviewed by the appeal division of the National Parole Board, and that there was no allegation that this re-examination ("appeal") was conducted .if without proper notice to the applicant. Madame Justice Reed concluded that (p5):
		The issuance of an order in the nature of certiorari is discretionary. Regardless of whether subsection 20(2) of the Parole Regulations is imperative or directory, it is my view that, in the light of the subsequent reexamination (appeal) of the applicant's case, it would simply be inappropriate to exercise any discretion in favour of the applicant, in this case.
Editorial Note - This case is cause for concern. If counsel feels that the better forum to seek relief for his client is in Federal Court, then he should not apply to the Appeals Division of the National Parole Board as the effect of Madame Justice Reed's decision is that a properly constituted hearing by the Appeals Division can cure procedural defects in the original hearing.
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