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POWERS AND DUTIES OF BOARD

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13. Jurisdiction of the Board - Subject to this Act, the Penitentiary Act and the Prisons and Reformatories Act, the Board has exclusive jurisdiction and absolute discretion to grant or refuse to grant parole or a temporary absence without escort and to terminate or revoke parole or to revoke release subject to mandatory supervision.
[RSC 1970 cP-2 s6; 1976-77 c53 s23; AS 1985 c35 (2nd Supp) s4]
Judicial Consideration -
R v Dixon - Unreported, August 6,1987, No. CAV00073, Victoria (BCCA)
	- The appellant appealed a sentence of ten years imprisonment imposed on a charge of conspiracy to import a narcotic. The appellant was initially charged with others but had one count severed. He was convicted along with the others in 1983 and sentenced to nine years. His trial on the second count took place two years later. He was convicted and sentenced to ten years to run concurrent with the nine years imposed in 1983. The effect of the sentence was to place this appellant in a worse position than the co-architects of the conspiracy scheme who had been tried and sentenced several years before. Counsel submitted that the sentence should be reduced to achieve equality with the other co-accused. The court agreed that there was a degree of unfairness apparent in the whole matter because one of the co-accused had already been paroled while this appellant was still in jail. However, the court commented that that sort of unfairness which arises from time to time by reason of the parole system is a matter that has to be addressed by the Parole Board and if adjustments are to be made, then it is for the Parole Board to make those adjustments. In addition, substantial material was put before the court as to how well the appellant had been doing while in prison. In this regard, the court commented that the prison authorities appeared to have recognized the appellant's co-operative attitude by him receiving day passes and that it expected that the prison authorities would continue to alleviate any degree of unfairness that there may be by continuing to extend those sort of privileges to the appellant, thereby encouraging his eventual rehabilitation. The rehabilitation of a prisoner in circumstances such as this is for the Parole Board and not the court. The function of the court is to determine whether or not the sentences were fit in all of the circumstances.
D.J-as v Director of Leclerc Institution of Laval et al - (1987) 30 CCC (3d) 129 (SCC)
	- Habeas corpus with certiorari in aid is not available to attack a refusal to grant parole by the National Parole Board. "Habeas corpus is available to challenge an unlawful deprivation of liberty. In the context of correctional law, there are three different deprivations of liberty: initial deprivation of liberty, a substantial change in conditions amounting to a further deprivation of liberty, and a continuation of the deprivation of liberty." On the facts, the applicant was never released on parole and was not attacking the initial deprivation of liberty, nor had there been any substantial change in the conditions amounting to a further deprivation of the liberty. He was therefore challenging the continuation of the deprivation of his liberty but this could only be done if that continuation had become unlawful. "In the context of the parole, the continued detention of an inmate will only become unlawful if he has acquired the status of a parolee. An inmate acquires that status as of the moment the decision to grant him parole takes effect. Thus, if parole is granted effective immediately, he becomes a parolee when the decision is rendered. If, for some reason, the restriction to his liberty continues, he may then have access to habeas corpus. If parole is granted effective at some later date, then the inmate acquires the status of parolee at that date and not at the date of the decision. Similarly, where a decision is made to grant parole but it is subject to the fulfillment of a condition, the inmate only becomes a parolee if and when the condition is fulfilled. If he is not released on parole when the time arrives or the condition is fulfilled, then he may resort to habeas corpus. Finally, if parole is refused, it is obvious that the inmate has not become a parolee and he cannot have recourse to habeas corpus to challenge the decision."
	This does not mean that a prisoner is not left without recourse in an appropriate case. If the Board had acted without jurisdiction in reviewing its earlier decision or had acted in a manner that infringed the rules of natural justice or the applicant's rights under s7 or s9 of the Charter, the parolee would have a remedy under s18 of the Federal Court Act.
Latham v The Queen - (1990) 39 Admin LR 197 (Sask CA)
	- Latham sought habeas corpus with certiorari in aid to review a National Parole Board decision denying him parole. Relying on Dumas v Leclerc Institution [1986] 2 SCR 159, 30 CCC (3d) 129 (SCC) and Howarth v National Parole Board [1976] 1 SCR 453, 18 CCC (2d) 385 (SCC), the Saskatchewan Court of Appeal held that provincial courts have no jurisdiction to review judgments of the National Parole Board. The court further said it would be inappropriate to consider granting a remedy under s24(1) of the Charter as was done in R v Gamble [1988] 2 SCR 595, 45 CCC (3d) 204 (SCC), as Latham had not exercised his right of review in the Federal Court.
H v The Queen and National Parole Board - Unreported, November 7,1985, No. T-2182- 85 (FCTD)
	- The National Parole Board is governed by the rules of natural justice and procedural fairness by virtue of the common law and by virtue of s7 of the Charter. The rules of natural justice provide that an individual is entitled to know the case being made against him in order to enable him to respond thereto. The degree of detail that is required to be disclosed must be assessed by reference to the purpose for which it is required: to enable the individual to make full and fair response to the adverse allegations against him. The provisions of the Privacy Act do not apply. They do not operate to limit access to in- formation to which an individual might be entitled as a result of other legal rules or principles. The rules regarding disclosure under the Privacy Act are different from and designed to serve a different purpose from those flowing from the rules of natural justice. Failure to exercise remedies under the Privacy Act does not preclude an application for enforcement of the rules of natural justice. On an application for prohibition to prevent the Board from considering information on an application for day parole or to compel them to disclose the information was allowed and the writ of prohibition granted. The disclosure in the circumstances was not sufficient. The details of the suspicion should have at least included the dates of the alleged offences, the place and presumably some indication of time and identity of victims. Section 17(3) of the Parole Regulations did not apply to an application for day parole. In the interests of the appearance of fairness as well as fairness itself, a new hearing was ordered before a different panel. The application was not premature, even though no final decision had been made.
Litwack v National Parole Board - (1986) 26 CCC (3d) 65 (FCTD)
	- The decisions of the Board under its broad discretion are nevertheless subject to s7 of the Charter and must be made in accordance with the principles of fundamental justice. A court can review a decision of the Board not only where it is procedurally un- fair, but also if the substance of the decision is unreasonable. A decision that is patently unfair or unreasonable because of the circumstances, Including delay, will be quashed.
Cardinal v National Parole Board - Unreported, September 19, 1990, No. T-2146-90 (FCTD) (Butterworths No. 34696)
	- The applicant applied for certiorari to quash the decision of the National Parole Board revoking the applicant's mandatory supervision with no re-credit of his earned remission. The applicant was released from prison on mandatory supervision, a condition of which required the applicant to abstain from the use of alcohol. A week after his release certain events took place which resulted in the applicant being charged with four criminal offences and his mandatory supervision being suspended for "breach of a condition". Two reasons were given: failure to abide by the special condition to abstain from the use of intoxicants, and suspected re- involvement in criminal activity. At his post-suspension hearing, the applicant requested a postponement pending the determination of the outstanding criminal charges, which were scheduled to be heard some two weeks later, and indicated that he felt the charges would be withdrawn. His request was denied. The applicant admitted to having consumed a small amount of alcohol on the night that he was arrested although he maintained that this was an isolated incident. The Board revoked his mandatory supervision resulting in the loss of his remission and voted not to re-credit any of it.
	After the Board's decision all criminal charges were withdrawn and the applicant requested the Board to re-examine its earlier decision, saying that by not postponing the hearing until the charges were disposed of the Board had in effect prejudged the events. The Board reaffirmed its decision, writing in part, "in view of your lengthy criminal record and the history of alcohol abuse, the Board was justified in determining that any use of alcohol makes you an undue risk to the community." Upon reading the Board's first decision, the Court was of the view that the applicant's mandatory supervision was revoked primarily because new criminal charges were laid and not for the "breach of condition". Following the event, the re-examination upheld the decision to I revoke the applicant's mandatory supervision on the ground that the applicant I had breached the special condition to abstain from alcohol. The Court doubted that the applicant was adequately prepared to oppose the revocation solely on this basis. It felt that the Board had virtually altered the primary basis for its decision to rely on what appears to have been a secondary or I minor issue during the initial hearing. It would have been more appropriate to have postponed the hearing until the criminal charges were disposed of before I determining whether to maintain the revocation of his mandatory supervision. The applicant was not made sufficiently aware of the focus of the Board's concerns prior to the hearing; the Board also breached the principle of natural justice by imposing an onerous penalty on the basis of outstanding criminal charges which were later withdrawn. The Board had failed in its duty to act fairly which is inherent in s7 of the Canadian Charter of Rights and Freedoms. Certiorari issued quashing the Board's decision to revoke the applicant's mandatory supervision with no re-credit of remission.
Bains v National Parole Board - (1989) 71 CR (3d) 343 (FCTD)
	- After the grant of day parole, but prior to its implementation, various officials made representations to the Chairman of the National Parole Board. The representations were critical of the Board's decision. The Crown who prosecuted Bains called the decision "unbelievably bad". The Chairman then instructed the Board not to release the applicant until these representations had been considered.
	The court quashed the Chairman's decision and issued mandamus to compel the Board to implement the applicant's day parole. The court held that I though s13 of the Parole Act gives "exclusive jurisdiction and absolute discretion" to the Board to grant parole, the Chairman does not have the power to nullify a decision of the Board once it has been made. The court followed Dumas v Leclerc Institution [1986] 2 SCR 459, 55 CR (3d) 83 (SCC), where Lamer, J said that an inmate (SCR p464): "...becomes a parolee when the decision is rendered."
Cadieux v The Director of Mountain Institution and The National Parole Board - (1984), 13 CCC (3d) 330 (FCTD)
	- An application for certiorari to quash the decision of the National Parole Board cancelling the applicant's unescorted temporary absence program was granted in circumstances where the Board granted a UTA program after a hearing but then received certain confidential information prior to implementation of the program and relied on that information to cancel the program prior to implementation without disclosing to the applicant the gist of the case against him and therefore violated s7 of the Charter.
	The interest of an inmate affected by a decision of the National Parole Board revoking his UTA program is similar to that affected when either his day parole or full parole is revoked. This is "liberty" of a more limited nature than is the case with full parole or day parole, but it is similar in character to the latter. Thus, decisions respecting UTA's also fall within the scope of the rules respecting certiorari at common law as well as being subject to the requirements of fundamental justice prescribed by s7 of the Charter. The fact that there is no procedure set out by regulation for dealing with UTA's does not change their character. The distinction between "rights" and "privileges" is not one which should ground a difference between allowing and now allowing judicial review. The use of the word "right" in s7 of the Charter is to be interpreted in a generic sense as encompassing all concepts and not in a narrow sense. Consequently, the fact that one is dealing with the granting of a privilege does not lessen the applicability of either the rules of fairness applied through common law certiorari or the guarantee of fundamental justice provided for by the Charter.
	While it is a cardinal principle that a person whose liberty is being decided upon should have the right to know the case made against him and have an opportunity to respond, the rules of fairness do not always require disclosure of all information that a decision-making body has before it. Under the fairness doctrine or the rules of natural justice there may be circumstances in which an inmate may be denied knowledge of the reasons underlying the revocation of his UTA program. An inmate in prison is in a different situation so far as his "liberty" is concerned to the ordinary citizen charged with a criminal offence and consequently, the requirement of disclosure of the substance of claims against one whose liberty is affected will not necessarily be the same in a situation involving whether or not a UTA program is granted or revoked as for the ordinary citizen. Nevertheless, it will be rare that an inmate cannot be told at least the gist of the reasons against him. Some situations can be envisaged where it might be necessary to refuse to disclose even the gist of the case against him when the information relates to conduct occurring within the institution and if the content of the information is such that its disclosure might automatically lead to the identity of an informer becoming known. In the con- text of the prison situation, safety and order within the prison may particularly require the non-disclosure of the identity of informers. Non-disclosure might also be necessary if such disclosure would automatically lead to the revealing of information collection methods and thus substantially undermine the future functioning of the Board. In such circumstances the Board is not precluded from relying on such information even if the gist of it is not passed on to the inmate. The public interests in preventing repeat offences while the inmate is at large, in maintaining security and order in the penal institution, and in preserving the Parole Board's ability to function effectively may outweigh the normal rule that a person is entitled to know the gist of the case against him, but, the occasions on which this is justified must be rare and there must be an element of necessity. Mere convenience for the functioning of the Board is not enough. Similarly, the mere fact that information was provided in confidence is not in Itself sufficient reason to justify non-disclosure of that information. To allow non-disclosure to be justified merely on that ground is far too weak a justification for a limitation on the scope of a constitutional guarantee as contained in s7 of the Charter, particularly when a person's liberty is at stake, even though that liberty might be of a limited or conditional nature. Generally an inmate is entitled to know the substance of the reasons for revocation of his UTA program otherwise he is unable to make a reply. This does not mean that he is entitled to know the identity of the source of information, nor that he is entitled to production of the actual documents themselves, nor all the details; of the case against him. While numerous interests exist that may justify non-disclosure on a class basis these interests may be sufficient to justify refusal to produce the actual confidential reports themselves, but are not sufficient to justify a refusal to disclosure the gist of the case against a person and cannot be justified on the basis of a claim for class exemption where s7 of the Charter applies. Circumstances justifying non-disclosure of the gist of the case against an inmate must relate to the specific content of the information in question. There must be a nexus between the content of that information and the protection of the public interest said to be served by non-disclosure. Section 36.1 of the Evidence Act does not apply directly where the application is for certiorari and not for an order to compel production of the information in question. The common law supplies a procedure similar to that in s36.1 allowing for review by a court of the Board's decision and on such an application the Board should be prepared to produce to the court the documents in question with a specific explanation as to why, in its view, non- disclosure is justified. Furthermore, the provisions of the Policy and Procedures Manual of the National Parole Board issued pursuant to s25 of the Parole Regulations and which in relation to cancellation or termination of UTA's purports to allow for non-disclosure under the provisions of the Canadian Human Rights Act is not "prescribed by law within the meaning of that term in s1 of the Charter because it has not been approved by the Governor in Council as required by s3(6) of the Parole Act. In any event, the provisions of the Policy and Procedures Manual, like s17 of the Regulations and the provisions of the Privacy Act and the Canadian Human Rights Act, while perhaps a legally effective limitation on any common law fairness requirement of disclosure, are not effective in limiting the right given under s7 of the Charter as the provisions are too broadly framed to be a reasonable limit pursuant to s1 of the Charter. The decision of the Board was quashed and the matter referred back for reconsideration and a determination to be made as to whether the applicant could be informed of the gist of the case against him.
Teneycke v National Parole Board - Unreported, October 3D, 1992, No. CC921232, Vancouver (BCSC) (Butterworths No. 37831)
	-The petitioner applied by way of habeas corpus with certiorari in aid to quash the decision of the Parole Board revoking his parole and refusing to recredit 857 days of remission. The petitioner was out on parole when police officers approached him in a bar to arrest him. The petitioner said that they approached him because of a mix up over an earlier cancellation of his parole; his parole officer reported to the Board that the police approached to arrest him for armed robbery. A struggle ensued which resulted in the petitioner being arrested and charged with obstruction and assaulting a police officer. The Board held that the petitioner's resistance at the time of his arrest showed that he presented a risk to society. The petitioner argued that the arrest was unlawful and therefore he was entitled to resist. The court dismissed the petitioner's application. The Board was not in a position to make a determination of guilt with respect to the robbery, assault or obstruction charges. It was, however, in a position to assess the circumstances and the behaviour surrounding the charges in order to determine the petitioner's risk to the public. Even if the arrest were unlawful, the Board's conclusion that he was a risk to the public was reasonable and should not be intervened with.
Latham v Solicitor General of Canada et al - (1984), 12 CCC (3d) 9 (FCTD)
	- The voluntary surrender of a day parolee by his return to an institution does not have the legal effect of terminating parole. The Board under this section has the exclusive jurisdiction to revoke parole or terminate day parole.
Roach v National Parole Board - Unreported, November 27th, 1981, No. CC811260, (BCSC)
	- Once the Parole Board purports to act pursuant to section 16 and 20 of the Parole Act, then section 6 does not apply.
Note - The following cases have been decided under s6 as it read prior to 1970 (SC 1958 c38).
Re McCaud - [1965] 1 CCC 168, 43 CR 252 (SCC)
	- The question of whether a sentence, must be served in a penal institution or may be served while released from the fl' institution and subject to the conditions of parole is altogether a decision within the discretion of the Parole Board as an administrative matter and is not in t any way a judicial determination.
Editorial Note - This decision was rendered by Spence J. in Chambers and an appeal was subsequently dismissed, (1964), 43 CR 256, [1965] 1 CCC 170. Also note that ten years later in Howarth v National Parole Board; [1976] 1 SCR 453, (1974), 50 DLR (3d) 349, 18 CCC (2d) 385, (1975) 3 NR 393, the majority of the court followed this earlier decision of Spence J., while Spence J. himself concurred with Dickson J. who wrote the minority judgment to the effect that amendments to the Parole Act since the decision in In Re McCaud served to aid in characterizing the parole revocation function of the Parole Board as judicial or quasi-judicial within the meaning of s28 of the Federal Court Act, as opposed to a purely administrative function. Since the decision in Howarth, the Parole Act and Regulations have been amended further and now a prisoner is entitled in certain circumstances, to a hearing, thus potentially opening up this issue of characterization once again. On May 25th, 1981, the Federal Court of Appeal ruled in a case called Meldrum v National Parole Board (1981) 37 NR 541, (FCA) -that the new Regulation 20(2) providing for a hearing did not warrant the conclusion that the decision of the National Parole Board to revoke a parole is now required by law to be made on a judicial or quasi-judicial basis. That case was not appealed to the Supreme Court of Canada.
Ex parte Beauchamp - [1970] 3 OR 607 (HC)
	- Followed McCaud; supra, but added that the Board must act fairly in accordance with the principles of proper justice. The Board's decisions are of vital importance to the inmate since his whole future may be affected. Fairness demands a consideration of the inmate's side of the story before revoking his parole. Revocation of parole is akin to a punitive measure which carries with it a duty to act fairly. There is always a reasonable chance that a consideration of the inmate's side of the story might I alter the result.
Howarth v National Parole Board - [1976] 1 SCR 453, 3 NR 391, 50 DLR (3d) 349, 18 CCC (2d) 385, affg. (1973), 14 CCC (2d) 145 (FCA)
	- An order of the National Parole Board revoking parole is a decision entirely within its discretion and is an administrative matter, not "required by law to be made on a judicial or quasi-judicial basis within the meaning of s28 of the Federal Court Act.
R v Gorog - [1975] 4 WWR 191 (Man CA)
	- The suspension and revocation of parole, before or after the expiration of sentence is an administrative act and not a matter involving judicial process.
Mitchell v The Queen - [1976] 2 SCR 570, 6 NR 389, [1976] 1 WWR 577, 24 CCC (2d) 241, 61 DlR (3d) 77
	- An order of the Parole Board revoking parole is a decision entirely within the discretion of the Parole Board and is an administrative matter.
Editorial Note - This case has been overruled in part -see comments in the introduction.
Collins v The Queen - Unreported, January 7, 1987 (Ont HC)
Re Grabina and The Queen - (1977),34 CCC (2d) 52 (Ont HC)
	- Section 26 does not in any way limit the absolute discretionary power given to the Board of ss6 and 10(1)(e) to revoke parole. Even though the authorized authorities have begun the procedure in s16 and may have failed to comply with its requirements, the National Parole Board can still revoke parole under ss6 and 10(1)(e).
Re Garde and R - (1977), 34 CCC (2d) 559 (Ont HC)
	- The National Parole Board is entrusted with exclusive jurisdiction in the entire field of parole of federal prisoners, for the full time of their sentences. It is given express powers to deprive prisoners of rights acquired under earlier decisions of the Board, which powers could not be implied. However, it is inherent in the general powers granted to the Board that it must have the implicit power to correct any injustice created by its own acts or orders and consequently, although no specific power is given to the Board to cancel any previous order made by it, Parliament has by inference granted such power to the Board and an order erroneously revoking a prisoner's parole can be subsequently cancelled by the Board when the error or injustice becomes apparent. This is not notwithstanding the general rules that where a grant of power is made to a subordinate body the power of that subordinate body is empowered to make a decision, once that decision has been made, the body is functus officio in the matter.
Beaumier v National Parole Board et al - [1981] FC 454 (FCTD)
	- National Parole Board's discretion to grant or refuse parole includes the power to re-examine and change its earlier decision without a further hearing. Thus, where an inmate was granted day parole to begin at a later date, the Board was entitled to refuse the parole before it began, and its decision was not a termination or revocation entitling the inmate to a hearing.
Editorial Note - On the question of whether or not the doctrine of "functus officio' applies to the National Parole Board see also the following cases: annotated under s21 of the Act, Sango v National Parole Board[1984] 1 FC 183 (FCTD); annotated under s21 of the Act; annotated under 525 of the Act, Dankowski v Warden of William Head Institution -Unreported, June 28, 1985, No. 85/1552 (BCSC); Re Hanna -Unreported, December 5, 1988 (NSSC); and Chester v National Parole Board -Unreported, April 13, 1989 (BCCA), and see also the case of Greenberg v National Parole Board 1 0 WCB 222 (FCA).
Editorial Note - This case was decided before the coming in force of the Canadian Charter of Rights and Freedoms.
McKend v The Queen - (1977), 35 CCC (2d) 286 (FCTD)
	- This section gives the federal National Parole Board exclusive jurisdiction to grant parole subject to the pro- visions of the Prison and Reformatories Act which provisions (s41 in relation to Ontario) delegate to provincial Parole Boards the power to grant parole subject to the approval of the Solicitor-General to prisoners serving the indeterminate portion of their sentences and who continue to be detained in custody. In other words. the federal National Parole Board has jurisdiction over provincial prisoners serving the definite portion of their sentences and continues to have jurisdiction over them if parole is granted during their definite portion until completion of their indeterminate portion, if any, on parole. The provincial board only has jurisdiction over a provincial prisoner remaining in custody after completion of his definite term and then serving an indeterminate term.
Editorial Note - Provision is now made by 512 (formerly 55.1) of the Parole Act and s7(2) (formerly s8(2) of the Prison and Reformatories Act regarding the appointment of provincial Parole Boards.
Perron v National Parole Board - Unreported, December 22, 1982, No. T -9036-82 (FCTD)
	- The decision of the Commissioner of Corrections in transferring a prisoner from lesser to greater security on the basis that the prisoner is a security risk is a material fact to be taken into account by the National Parole Board in deciding whether or not to grant that prisoner a parole. It is within the competence and responsibility of the Commissioner of Corrections to make such a determination and the National Parole Board is entitled to accept that I determination with no obligation to independently investigate it. This is so even where the underlying internal changes leading to the transfer have been dismissed and the prisoner acquitted thereof and the Commissioner of Corrections has still refused to retransfer.
O'Brien v National Parole Board - (1984) 2 FC 314, 43 CR (3d) 10, 17 CCC (3d) 163 (FCTD)
	- A request for an unescorted temporary absence does not raise a question of the deprivation of any constitutionally enshrined right of liberty, condition or otherwise, such as might occur with the revocation of parole and its consequences on earned remission or the suspension of mandatory supervision. A request for a temporary absence is a request for the granting of a privilege. A distinction must be drawn between a denial affecting the expectation of enjoyment of some anticipated privilege of liberty and the deprivation of some right of liberty, presently existing and enjoyed, where such deprivation is contrary to fundamental justice. Consequently, an administrative decision to deny such a request does not constitute a deprivation of liberty under s7 of the Charter 'and consequently, the request and denial do not have to be dealt with in accordance with the principles of fundamental justice. However, once the Board elects to embark upon a hearing even though one is not legally required, it follows that such hearing must be conducted in accordance with the rudiments of natural justice and the common law duty to act fairly. Fundamental fairness dictates that the applicant be afforded an in-person hearing before all members of the Board who had to vote on his application. A failure to do so resulted in the decision denying the application for an unescorted temporary absence being quashed on certiorari and a new hearing before a full panel of Board members required to determine the merits of the application was ordered.
MacDonald v National Parole Board - [1986] 3 FC 157 (FCTD)
	- The O'Brien decision (supra) was cited with approval. In addition, the court characterized the case II as one sitting within the exceptions rather than in the rule formulated in the Singh case in the Supreme Court of Canada insofar as the request for an oral hearing was concerned. The court noted that "conceptually and actually the 'If deprivation by revocation of even a conditional liberty which has already been accorded is different from, and more serious than, the discretion of withholding of such a conditional liberty in the first place".
R v Cardinal - [1985] 6 WWR 62 (Alta CA)
	- The purpose of parole is to try and rehabilitate the offender and this involves a program of rehabilitation which is supposed to be carefully planned and conscientiously executed. A decision to hold warrants for further offences pending the prisoner or parolee's release on parole would be totally disruptive of such a plan. A failure on the part of the police and Parole Board to take this into account is unacceptable. There was unreasonable delay in the circumstances, contrary to s11(b) of the Charter. The reason given to spare the public purse was not acceptable. The delay here was deliberate and not inadvertent. There was no acquiescence by the accused. As a condition of the parole, the prisoner was told to go to a specific location and if he did not, his parole would be cancelled and he would be returned to jail. If, on the other hand, he followed the condition, he would still be arrested and returned to jail. The accused's Charter rights were breached and the new charges under the warrant were quashed. This was considered the only effective means to compensate the accused for unreasonable delay and to spare him from any further grief on the matter. The deterrence of law enforcement authorities from breaching Charter rights is a factor.
14. (1) Additional jurisdiction - Where a person is
(a)	sentenced to a term of imprisonment in respect of which the Board has exclusive jurisdiction to grant, refuse to grant or revoke parole, and
(b)	at the time of the sentence or at any time during the term of imprisonment, sentenced to a term of imprisonment imposed under an enactment of a provincial legislature that is to be served either concurrently with or immediately after the expiration of the term of imprisonment in respect of which the Board has exclusive jurisdiction,
the Board has, subject to this Act, exclusive jurisdiction and absolute discretion to grant, refuse to grant or revoke parole in relation to both of those terms of imprisonment.
(2) Coming into force - Subsection (1) shall come into force in respect of any of the Provinces of Ontario, Quebec, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland or in respect of the Yukon Territory or the Northwest Territories on a day to be fixed by proclamation made after the passing of an Act by the legislature of the province named in the proclamation authorizing the Board to exercise the additional jurisdiction described in subsection (1).
[RSC 1970 cP-2 s7]
15. (1) Review of cases - Subject to subsection (2), the Board shall review the case of every inmate sentenced to imprisonment in or transferred to a penitentiary for two years or more and shall do so at the times prescribed by the regulations but not later than the day on which an inmate has served the portion of the term of imprisonment, as prescribed by the regulations, that must be served before day parole may be granted.
(2) exception - The Board is not required to review, pursuant to subsection (1), the case of an inmate who advises the Board in writing that the inmate does not wish to be granted parole by the Board, and who has not, in writing, revoked that advice.
(3) Where sentence less than two years - The Board shall, at the times prescribed by the regulations, review such cases of inmates serving a sentence of imprisonment of less than two years as are prescribed by the regulations, on application made by or on behalf of the inmate.
(4) Decision - On completing the first review of the case of an in- mate as required by subsection (1), the Board shall decide
(a)	in all cases, whether to grant or refuse day parole; and
(b)	in respect of such classes of inmates as are prescribed by the regulations, whether to grant or refuse parole, other than day parole, or to defer that decision.
(5) Idem - On reviewing the case of an inmate as required by subsection (3), the Board shall decide whether to grant or refuse the parole applied for by or on behalf of the inmate and for which the in- mate is eligible at the time of the review.
[RSC 1970 cP-2 s8; AS 1985 c34 (2nd Supp) s3]
Judicial Consideration -
Ford v National Parole Board - [1977] 1 FC 359, 73 DLR (3d) 630 (FCTD)
	- This section entitles an inmate as of right to a review and decision on the question of parole at the times specified in the regulations. This right to a review and a decision is distinct from the decision to grant a parole which is an administrative act relating to a privilege. In other words, a prisoner has a right to a review and a decision but does not have a right to be given a parole which is a privilege. Further, any amendment to the regulations changing the times required for the reviews affect substantive rights and are not merely procedural and consequently any such amendments will not operate retroactively unless it is expressly so provided. Consequently, the prisoner's rights in this regard will be determined by the provisions in the regulations at the date of his committal or recommittal and not by subsequent amendments.
	See also Morgan v National Parole Board -Unreported, January 26th, 1982, No. A-670-81 (FCA), and, Sango v National Parole Board -Unreported, January 26th, 1982, No. A-669-81 (FCA).
16. (1) Powers of Board - The Board may
(a)	grant parole to an inmate, subject to any terms or conditions it considers reasonable, if the Board considers that
	(i)	grant parole to an inmate, subject to any terms or conditions it considers reasonable, if the Board considers that
	(ii)	the reform and rehabilitation of the inmate will be aided by the grant of parole, and
	(iii)	the release of the inmate on parole would not constitute an undue risk to society;
(b)	impose any terms and conditions that it considers reasonable in respect of an inmate who is subject to mandatory supervision;
(c)	grant discharge from parole to any paroled inmate, except an inmate on day parole or a paroled inmate who was sentenced to death or to imprisonment for life as a minimum punishment;
(d)	in its discretion, terminate or revoke the parole of any paroled inmate, other than an inmate on day parole, in any case other than that of a paroled inmate to whom discharge from parole has been granted; and
(e)	in its discretion, revoke the parole of any person who is in custody pursuant to a warrant issued under section 22, or terminate the parole instead of revoking it as provided for in that section, whether or not the sentence of that person has expired.
(1.1) Mandatory conditions of parole and mandatory supervision - Subject to subsection (1.2), the Board is deemed to have imposed such mandatory terms and conditions as may be prescribed by the regulations for the purposes of this subsection in respect of an inmate released on parole or subject to mandatory supervision.
(1.2) Application for relief from mandatory condition - On an application made in accordance with the regulations to the Board by or on behalf of an inmate released on parole or subject to mandatory supervision, the Board may, in accordance with the regulations, relieve the inmate of compliance with, or vary in respect of the inmate, any term or condition referred to in subsection (1.1).
(1.3) Compliance with instructions - Where an inmate is released on parole or subject to mandatory supervision, the inmate shall comply with any instructions given by the parole supervisor in respect of any term or condition of parole or mandatory supervision in order to prevent a breach of any such term or condition or to protect society.
(2) Subsequent term of imprisonment - The authority conferred on the Board by paragraphs 16(1)(d) and (e) may be exercised notwithstanding any new term of imprisonment to which the inmate becomes subject after the release of the inmate on parole.
(3) Termination of unescorted temporary absence - The Board or any person designated by the Chairman may terminate a temporary absence without escort granted to an inmate pursuant to section 25.2 or 25.3 and cause to be issued a warrant, in writing, authorizing the apprehension of the inmate and the recommitment of the inmate to custody as provided in this Act.
(4) Termination of parole - The Board may terminate the parole of any paroled inmate and cause to be issued a warrant, in writing, authorizing the apprehension of the inmate and the recommitment of the inmate to custody as provided in this Act.
(5) Exercise of delegated powers - The Chairman may fix the terms and conditions under which a power may be exercised pursuant to subsection (3) by any person designated by the Chairman for the purposes of that subsection.
[RSC 1970 cP-2 s10; 1976-77 c53 s25; AS 1985 c34 (2nd Supp) s4 and c35 (2nd Supp) s5]
Judicial Consideration -
S16
R v McCrae - Unreported, July 2,1991, No.M2829/91 (Ont Ct, Gen Div)
	- The applicant, McCrae, brought an application for a Writ of habeas corpus seeking his release from Kingston Penitentiary. When nearing the end of his prison term the prisoner was sent to the Kingston Psychiatric Hospital for medical assessment and treatment. Since the Ontario Health Insurance Program would pay the associated costs if McCrae were on full parole (rather than the Institution if he were either an inmate or on day parole), McCrae was granted full parole but with stringent conditions. In fact he remained in closed custody during his three-month stay at the hospital. Upon his return to the penitentiary, he was advised that his release date, counting his time in hospital as full parole, had been calculated as July 12th, 1991. If, however, the time in hospital were counted as time served or day parole, then the release date would be June 21st, 1991. This difference in release dates was due to the fact that a prisoner only earns remission while in custody or on day parole and not while on full parole. The prisoner argued that his sentence had been incorrectly computed as the time spent in hospital was not truly full parole. The judge agreed saying that the applicant was never in any real or legal sense on parole and that the granting of notional full parole to facilitate medical treatment cannot com- promise the prisoner's rights under the statutory scheme for earned remission established under the Penitentiary Act. Although the criteria in s16 of the Parole Act are broad, they do not permit the course of action taken here, particularly when it results in a loss of remission.
Sorgente v National Parole Board - Unreported, February 8, 1991, No. T-178-91 (FCTD) (Butterworths No. 35355)
	- The applicant applied for day parole which the Parole Board reluctantly granted predicated on the successful completion of two five-day parole period to a half-way house. The day after her release, the applicant was arrested and charged with theft upon which her day parole was suspended and the Parole Board convened a post-suspension hearing which directed that the applicant's day parole be revoked and that there be no recredit of remission. Seeking to avoid lost remission, the applicant argued that under the scheme of the Act, the five-day periods could only have been by way of unescorted temporary absence and not day parole. Considering that the application brought by the applicant was an application for day parole and not an application for unescorted temporary absences, that the applicant knew that the Board had ordered two five-day periods to be by way of day parole and not by unescorted temporary absences, and that documentation acknowledged by the applicant in writing before she was released unequivocally pointed to day parole rather than unescorted temporary absence the applicant's position could not be maintained. It was a proper exercise of the Board's discretion to grant periods of absence by way of day parole as opposed to unescorted temporary absences as they were reluctant to grant day parole at all and that under the circumstances of this case, the order was neither arbitrary, capricious nor unfair.
Steele v Warden of Mountain Institution - (1991) 60 CCC (3d) 1 (SCC)
	- The Parole Board's failure to regard and apply the criteria set forth in s16(1)(a) of the Parole Act may result in a disproportionately severe sentence and an offender's continued incarceration in these circumstances may violate s12 of the Charter. See the annotation under Charters12 on p5144.4.
Dumas v Director of Leclerc Institution of Laval et al - (1987) 30 CCC (3d) 129, 22 Admin LA 205 (SCC)
	- Habeas corpus is not available to challenge the decision of the Board to refuse to grant parole. Such a remedy is only available to challenge the initial deprivation of liberty, a substantial change in conditions amounting to a further deprivation of liberty, and a continuation of the deprivation of liberty where that continuation has become unlawful. Continued detention can only become unlawful once the prisoner has acquired the status of a parolee. If the Board acts without jurisdiction or contrary to the rule of natural justice or s7 or s9 of the Charter, the prisoner has a remedy in the Federal Court under s18.
Litwack v National Parole Board - (1986) 26 CCC (3d) 65 (FCTD)
	- The decision of the Parole Board to impose a term or condition on parole and its implied power to review and revoke or continue such a term or condition are subject to s7 of the Chal1er and must be made in accordance with the principles of fundamental justice. Certain fundamental principles have evolved requiring an interpretation of the Chal1er in a liberal fashion. There is a duty, on an administrative tribunal, not merely to act fairly, but also to act reasonably. Mere compliance with procedural fairness is not sufficient and the substance of a decision must be reasonable on the facts. Apply the test of "patent unreasonableness", the court stated, that the imposition of the condition and its objective in the first instance did not appear to be unreasonable and certainly not "patently unreasonable", but the subsequent decision of the Board not to revoke the condition in the circumstances was patently unreasonable and patently unfair, requiring intervention of the court on an application for certiorari and under s24(1) of the Chal1er. The Board acted without considering the change in the circumstances. The delay, which was unfair and unreasonable, coupled with the circum- stances, indicating that the applicant had reformed, including the reports from those in the best position to judge and with no evidence to the contrary, the decision violated principles of fundamental justice. The decision was inconsistent with the purposes of imprisonment which were to reform the convict and make him renounce a life of crime by realizing the error of his ways. The treatment of the applicant could also be considered as unusual treatment" contrary to s12 of the Charter, bearing in mind that the whole purpose of parole is to enable a convict to reintegrate himself into society and, if possible. obtain or create for himself useful employment. The condition in question appeared to deprive the applicant of the opportunity to earn a livelihood and work of a nature which he had been trained to perform.
Cruikshanks v Stephen - Unreported, July 17, 1992, No. VI01627, Victoria (BCCA) (Butterworths No. 37288)
	- Section 16 of the Parole Act authorizes the Parole Board to grant parole to an inmate subject to terms and conditions that it considers reasonable in respect of the inmate who is subject to mandatory supervision. At a hearing before the Parole Board the inmate was advised that if he did not agree to random requests for urinalysis he would not be paroled. The court of appeal held that in the particular circumstances of this case, the requirement as a condition of mandatory supervision to furnish urinalysis samples on demand without reasonable or probable grounds was made arbitrarily and constituted a breach of s8 of the Charter.
Logan v Director of William Head Institution and National Parole Board - Unreported, May 30,1986, No. 86/1307, Victoria (BCSC)
	- Section 10(1)(b) of the Parole Act expressly applies to mandatory supervision. That section, alon9 with s15(2), which in turn brings into play s 13(1) of the Parole Act provide the statutory context in which to determine the meaning of the word "remission" in s24(1) of the Penitentiary Act. The word "remission" in that section does not mean "cancelled" or "expunged" but carries with it the concept of merely abstaining from enforcing an existing right without bearing the connotation of cancelling that right. Consequently, the granting of "remission" does not result in a reduction of the sentence imposed by the court. Consequently, the provision for mandatory supervision and the imposition of terms and conditions are lawful.
Bryntwick v Canada (National Parole Board) - (1986) 55 CR (3d) 332, 32 CCC (3d) 321 (FCTD)
	- The applicant, who was on full parole, by chance met a former accomplice and attended at a hotel where the police attended at the owner's request. The applicant subsequently reported this incident to his parole supervisor. This resulted in a report to the National Parole Board and the Board advised the applicant that it intended to add a special condition to his parole which provided a prohibition from any non-fortuitous meetings or communications with people having a criminal record or with whom you think might have a criminal record". The applicant was advised that the reason for the condition related to the hotel incident and to the fact that his parole had previously been revoked as a result of the commission of an offence in the company of other persons who had a criminal record. This applicant and his counsel were given an opportunity to respond to the imposition of the condition. The Board, nevertheless, imposed the condition and the applicant sought to quash the decision of the Board in that regard on certiorari or relief under s24(1) of the Charter. The court dismissed the application and held that the Board acted fairly in the imposition of the special condition and did not breach any of the accused's Charter rights. With respect to s7 of the Charter, the court held that the condition had been imposed in accordance with principles of fundamental justice. While the condition represented a further incursion upon his freedom, it was imposed in accordance with the basic tenets of our legal system. No procedural or substantive violation had been established. He had been given a full opportunity to meet the case that was placed before the Board and had filed, through his lawyer, written representations which did not establish a breach of the principles of fundamental justice. The decision of the Board was not patently unreasonable. The Board had full authority to decide as it did and the condition imposed was not obviously so unreasonable so as to constitute an excess of jurisdiction. The applicant further argued that the condition was void for vagueness and, consequently, in violation of s7. The court was of the view that the condition was sufficiently clear and precise to be understood and enforced and not beyond the comprehension of any reasonable person. In addition, the court found that the restriction was reasonably and necessarily related to the interests of the community and stood as an additional safeguard for the parolee and his progress towards full rehabilitation. The court noted that if, by chance, the applicant became a victim of any arbitrary or discriminatory interpretation or enforcement of the condition, he could then look to the courts for redress. With respect to the applicant's claim that the condition amounted to a violation of s6 of the Charter; the court held that s6 establishes a right to pursue the gaining of a livelihood in any province and is not an absolute right to work but a mobility right. Consequently, that section of the Charter had not been violated, in the circumstances, either. The court agreed that the applicant's right to associate under s2(d) of the Charter had undoubtedly been curtailed and consequently the onus shifted to the respondents to show whether or not the condition was a reasonable limit under s1 of the Charter. The court held that it had been established that the condition was patently reasonable and imposed no excessive restrictions and that the condition had a rational basis and stood well within reasonable bounds acceptable and accepted in a democratic society.
	The applicant further argued that the condition was void for vagueness and, consequently, in violation of s7. The court was of the view that the condition was sufficiently clear and precise to be understood and enforced and not beyond the comprehension of any reasonable person. In addition, the court found that the restriction was reasonably and necessarily related to the interests of the community and stood as an additional safeguard for the parolee and his progress towards full rehabilitation. The court noted that if, by chance, the applicant became a victim of any arbitrary or discriminatory interpretation or enforcement of the condition, he could then look to the courts for redress. With respect to the applicant's claim that the condition amounted to a violation of s6 of the Charter; the court held that s6 establishes a right to pursue the gaining of a livelihood in any province and is not an absolute right to work but a mobility right. Consequently, that section of the Charter had not been violated, in the circumstances, either.
	The court agreed that the applicant's right to associate under s2(d) of the Charter had undoubtedly been curtailed and consequently the onus shifted to the respondents to show whether or not the condition was a reasonable limit under s1 of the Charter. The court held that it had been established that the condition was patently reasonable and imposed no excessive restrictions and that the condition had a rational basis and stood well within reasonable bounds acceptable and accepted in a democratic society.
Logan v National Parole Board - Unreported, September 22, 1992, No. T -833-92 (FCTD) (Butterworths No. 37722)
	- The applicant was serving 13 years for armed robbery and forcible confinement. The Parole Board denied the applicant's request for full parole "in the absence of any very convincing evidence clearly indicating that the risk of re-offending would be absolutely minimal". The applicant argued that the Board exceeded its jurisdiction by applying a more onerous standard to the determination of his eligibility for parole that which is specifically provided for under s16(1)(a) of the Parole Act. The court rejected the applicant's request. It held that s16(1) (a) sets out criteria which "may be considered by the Board; it does not prevent the Board from considering factors which are not specifically outlined in the section.
S16(1)(d)
R v Gorog - [1975] 4 WWR 191 (Man CA)
	- The suspension and revocation of parole is not a determination that is required to be made on a judicial or a quasi-judicial basis. Therefore it cannot be review by certiorari; and habeas corpus will not lie to go behind the warrant of committal if the warrant is regular on its face.
Editorial Note - The Gorog decision was reversed by consent in the Supreme Court of Canada without written Reasons and the report at (1977), 3 WWR 96 (SCC) indicates that counsel in that case advised that the Supreme Court agreed that the law was correctly stated by Matas J., in dissent in the Manitoba Court of Appeal.
Re Skitt v Solicitor General of Canada et al - [1976] 1 FC 556, 29 CCC (2d) 392 (FCTD)
	- The power to "terminate any parole in 510(2) does not cancel the power in s10(1)(e) to "revoke the parole of any paroled inmate" which includes a day parolee.
Beaumier v National Parole Board et al - [1981] 1 FC 454 (FCTD)
	- National Parole Board's discretion to grant or refuse parole includes the power to re-examine and change its earlier decision without a further hearing. Thus, where an inmate was granted day parole to begin at a later date, the Board was entitled to refuse the Parole before it began, and its decision was not a termination or revocation entitling the Inmate to a hearing.
Collins v The Queen - Unreported, January 7,1986, Ont HC in Chambers
	- The steps set out in s16 are not conditions precedent to the exercise of the Parole Board's discretion to revoke parole.
Re Vidlin and The Queen - (1978), 38 CCC (2d) 378 (BCSC)
	- If mandatory supervision has been suspended by a warrant under ss16 and 18 but the inmate has not been apprehended by the time his sentence expires, all subsequent warrants and orders, suspensions and revocations are null and void by reason of s13(1) which provides that the sentence continues to run until it expires, is revoked or forfeited. Consequently, a parole cannot be revoked under s10(1)(e) unless the paroled inmate has been apprehended and is in custody prior to the expiry of his sentence.
Re Vidlin and The Queen - (1978), 38 CCC (2d) 378 (BCSC)
	- If mandatory supervision has been suspended by a warrant under ss16 and 18 but the inmate has not been apprehended by the time his sentence expires, all subsequent warrants and orders, suspensions and revocations are null and void by reason of s13(1) which provides that the sentence continues to run until it expires, is revoked or forfeited. Consequently, a parole cannot be revoked under s10(1)(e) unless the paroled inmate has been apprehended and is in custody prior to the expiry of his sentence.
Re Grabina and The Queen - (1977), 34 CCC (2d) 52 (Ont HC)
	- Section 16 does not in any way limit the absolute discretionary power given to the Board by ss6 and 10(1)(e) to revoke parole. Even though the proper authorities have begun the procedure in s16 and may have failed to comply with its requirements, the National Parole Board can still revoke parole under ss6 and 10(1)(e). The phrase "paroled inmate" includes an inmate who has had his parole suspended and is in custody. (This finding is necessary for the decision but is not discussed.)
Perron v National Parole Board - Unreported, December 22,1982, No. T -9036-82 (FCTD)
	- The decision of the Commissioner of Corrections in transferring a prisoner from lesser to greater security on the basis that the prisoner is a security risk is a material fact to be taken into account by the National Parole Board in deciding whether or not to grant that prisoner a parole. It is within the competence and responsibility of the Commissioner of Corrections to make such a determination and the National Parole Board is entitled to accept that determination with no obligation to independently investigate it. This is so even where the underlying internal charges leading to the transfer have been dismissed and the prisoner acquitted thereof and the Commissioner of Corrections has still refused to retransfer.
Roach v Director of Kent Institution - (1983) 5 CCC (3d) 90,34 CR (3d) 249, [1983] 3 WWR 711 (BCCA) per Craig JA (concurred in part by Nemetz CJ)
	- The views of Henry J in Ex parte Collins (1976), 30 CCC (2d) 460 and Goodman J in Re Grabina and The Queen to the effect that strict compliance with the review procedure is not a condition precedent for its exercising jurisdiction under s10(1)(e) are preferable to the views expressed by Matas JA in R v Gorog and Anderson J in R v Elliot, [1976] 3 WWR 264 (BCSC). Per Seaton JA under s10(1)(e) the Board i.e. entitled to revoke paroles in either of two circumstances. First, it may in its discretion, if there has not been a discharge from parole, "revoke the parole of any paroled inmate". The other authority is to "revoke the parole of any person who is in custody pursuant to a Warrant issued under s16 notwithstanding that his sentence has expired". It is important to note that this latter provision gives power over "any person" not just "paroled inmates". This latter provision applies to persons whose sentence has expired and who are in custody pursuant to a Warrant issued under s16. Consequently under the first part the Parole Board can revoke the parole of a "paroled inmate" at any time whether proceedings under s16 have been properly taken, improperly taken, or not taken at all. The second part only applies to persons who have served their sentence and who are not under the supervision of the National Parole Board and in such cases the Board's power is limited to the extent that it can only revoke their parole if they are in custody pursuant to s16 Warrant. In Gorog and in Elliot the sentences had expired before the parole was revoked and consequently they were not "paroled inmates" and could not be revoked under the first part of s10(1)(e). Their parole could only be revoked under the second part. Consequently in those cases the Board's power was dependent on proceedings being taken under s16 and because they were not in custody the second part of s10(1)(e) could not be resorted to. However, in circumstances where the person's sentence has not expired then proceedings under s16 are not necessary to the Board's power under .the first part of s10(1)(e) just as in the cases of Ex parte Collins and Re Grablna.
McClarty v National Parole Board - (1990) 10 WCB (2d) 491 (FCA); aff'g (1989) 5 WCB (2d) 417 (FCTD)
	- The Board's power under s16(1)(d) of the Parole Act to revoke an inmate's parole is not dependent on there being a prior suspension under s22. Therefore, it is of no consequence whether such suspension is valid or invalid. By failing to comply with s22(3) the Board simply lost its jurisdiction to revoke mandatory supervision pursuant to s22, however, it could still revoke under s16(1)(d).
Swan v AGBC - (1983) 7 CCC (3d) 130, 35 CR (3d) 135 (sub nom Re Swan and R) (BCSC)
	- The Court felt bound by the decision of the BC Court of Appeal in Roach v Director of Kent Institution (supra) and held that even though Swan was in custody pursuant to a Warrant issued under s16 when his parole was revoked nevertheless his sentence had not expired and the Parole Board had jurisdiction to commence the revocation process under its general power under s10(1)(e) without regard to the absence of a post-suspension review. However, because of s7 of the Charter of Rights and Freedoms a post revocation hearing was now required or the Board would lose jurisdiction.
Starr v National Parole Board - Unreported, December 2, 1982, No. T -7785-82, Winnipeg (FCTD)
	- Applicant's mandatory supervision was set to begin on a Sunday, and, according to the practice of the Board, he was given an Unescorted Temporary Absence Permit for the preceding Friday and Saturday. On Saturday he committed further crimes, was arrested, and detained in custody. Applicant sought to quash decision of Board revoking his mandatory supervision. Held: Application allowed; revocation quashed. Board was without jurisdiction since applicant had not yet been released on mandatory supervision and therefore had not breached it. He was not a paroled inmate within s10(1)(e).
See also Lennox, Duncan and Lutz v National Parole Board -Unreported, December 13, 1984 No. T-2822-84 (FCTD) where suspensions pursuant to s16 (now s22) were quashed on certiorari it being found that there was undue delay on the part of the Board in holding a post-suspension hearing under Regulation 20 which requires such hearings to be held ''as soon as practical". This was held to be contrary to natural justice. But the court further held that this did not mean that the Board had lost jurisdiction and it could still resort to s10(1)(e) (now s16(1)(d)) if it decided to do so.
In Re Conroy - (1983), 5 CCC (3d) 501 (Ont HC)
	- At the time the applicant was I granted parole he was requested to agree to abstain from alcohol as a condition of that parole. He expressly refused to agree and was granted parole with no special condition attached. Shortly after his release he was found in an intoxicated state by his parole officer at his mother's home and after expressing a desire to return to prison the Warrant of Apprehension and Suspension "for the protection of society" was issued. Shortly thereafter that suspension was cancelled and the parole reinstated. Shortly after that the applicant reported to his parole officer and was found to be in an inebriated condition. His case was then reviewed by the Board and a special condition added to the effect that he abstain from intoxicants. That order and addition was made without notice to the applicant. Shortly thereafter he was suspended "to prevent a breach of parole conditions and for the protection of society". He then sought habeas corpus with certiorari in aid. The court held that the imposition of the abstinence condition was within the authority of the Board but that the applicant's rights under s7 of the Charter had been violated and ordered a new hearing. On the authority of the Board to impose reasonable conditions the court found that the board could impose any reasonable condition it deemed desirable after having heard the inmate provided that such condition is not arbitrary or otherwise unlawful. If the Board can impose any reasonable condition it deems desirable at the initial hearing on application by the inmate for parole, the court felt that the Board's failure to do so at that time did not preclude it from subsequently exercising the same power when a change in circumstances dictated. Following Re Carde and The Queen (1978), 34 CCC (2d) 559, the court found that the National Parole Board has the implicit power to correct its decisions and any injustice created by its own acts or orders. The court went on to find that the imposition of an abstinence condition did not deprive the applicant of either his "life" or his "liberty". While a parolee enjoys a very real but nonetheless conditional or qualified right or privilege to remain free of detention or custody the imposition of a further condition of abstinence from alcohol does not detain a parolee or return him to custody and the parolee remains free "to resume his activities as a citizen at large in the community under supervision." It was therefore the court's opinion that s7 of the Charter did not apply to the imposition of the condition. However, in the circumstances the Board proceeded to revoke the parole without a hearing which was required by s20(2) of the Regulations. There was no evidence before the court that the applicant was advised of his right to a hearing and his right to assistance at such a hearing or whether he knew what would be decided at the hearing and there was no evidence that the applicant gave any waiver or consent in writing to the holding of such a hearing. As a result of the revocation he lost ten and one-half months earned remission. The Board here relied upon a waiver of hearing or consent to dispense with it and had the onus of establishing that it was an informed consent or waiver. Consequently, the lack of hearing resulted in a denial of the applicant's rights under s7 of the Charter and the revocation was quashed and an order made that the applicant was entitled to a hearing before the Board to determine whether or not they should cancel the suspension or revoke the parole.
Ziatas v National Parole Board - (1983), 70 CCC (2d) 381 (FCTD)
	- Subsections (1) and (2) of this section vests the Parole Board with independent power. The procedure prescribed by ss20 and 20.1 of the Parole Regulations have no application to the exercise of the power to terminate day parole under subsection 10(2). The Board can cancel a suspension of parole under s16 and then exercise its discretion under s10(2). However, where the suspension has not been cancelled and the case has been referred to the Board pursuant to s16(3) of the Act then ss20 and 20.1 of the Regulations must be observed notwithstanding circumstances involving a termination of day parole as opposed to a revocation where the former does not involve a loss of remission such as on a revocation. Consequently, the termination of the applicant's day parole was quashed on certiorari where the termination took place without a hearing.
Woodhouse v National Parole Board - Unreported, December 5, 1983 No. T-2497-83 I (FCTD)
	- An application for certiorari to quash a decision of the Board denying parole was dismissed. The applicant claimed that the decision was based on past release programs and infractions of such programs which had already been dealt with by the Board and raised numerous allegations of violation of various sections of the Charter and specific provisions of the Parole Act as well as the common law duty to act fairly. After a detailed review of the past communications between the applicant and the Board, as well as all communications in relation to the decision in question, the court concluded that there were no grounds upon which the decision of the Board could be effectively challenged. There was nothing in the material to show breach of Section 10 and, in fact, the material supported that the Board was duly cognizant of the requirements of the Act and specifically Section 10 and exercised its discretion accordingly. Several sections of the Charter that were raised had no application to the issue before the court and it was the court's opinion that s7 of the Charter had no application to the proceedings and that the principles of fundamental justice and fairness had been observed by the Board. The court stated that the Board was entitled to exercise its discretion in arriving at its decisions provided it exercised such a discretion judicially and in accordance with the duties entrusted to it and carried out those duties in good faith and in conformity with the principles of fairness and natural justice.
Tom v National Parole Board - Unreported, August 16, 1983 Action No. T-72-83 (FCTD)
	- The applicant applied for day parole, a hearing was held and day parole was refused. In the reasons for refusal reference was made to a Board policy with respect to the granting of day parole to life sentenced inmates specifically in relation to the requirements of a gradual release program from the date of eligibility for day parole. There was extensive material providing information about the applicant before the Board including specific psychiatric and psychological reports that were requested before the hearing. The decision was reviewed by the Internal Review Committee and upheld with extensive reasons. The applicant sought to quash the decisions and to obtain mandamus to compel a re-hearing. The applications were refused. The court concluded that the Board in arriving at its decision did not base its decision on the policy but extended its perimeter of inquiry to ascertain all material information that would have a bearing on their decision as to whether or not the applicant's parole application should or should not be granted. The Board and the Review Committee are entitled to exercise their discretion so long as it is exercised judicially and in accord with the duties entrusted to them under the provisions of the Act and they carry out these duties in good faith and in accordance with the principles of natural justice. The Board and the Review Committee did not base their decision on general policy to the exclusion of the merits of the application. The Board may consider general policy provided it is used merely as a guideline and not given the force of law. Furthermore, the decisions complied with the fairness standards required by the cases.
National Parole Board v Pizzurro - Unreported, October 18, 1985, No. T-2035-85 (FCTD)
	- The National Parole Board in conducting a hearing is entitled to consider the general subject matter of outstanding charges as a factor to be taken into account in the determination of suitability for parole. This will not amount to a breach of the duty to act fairly. In addition, in the circumstances, the Board found the applicant to be untruthful and unwilling to accept responsibility for his initial crime, quite apart from the consideration of outstanding charges.
Staples v National Parole Board - (1985) 47 CR (3d) 186 (FCTD)
	- On an application to quash a decision denying day parole, the applicant alleged that the Board failed to consider current information relevant to the decision and failed to act fairly in failing to advise the applicant of evidence it relied upon in arriving at its decision to enable a fair opportunity to respond. The court held that there was no obligation on the Board to gather evidence and that the applicant should have obtained that evidence and put it before the Board. However, the Board did fail to advise the applicant or make him aware of the substance of the materials adverse to his cause that the Board would be considering in order to enable him to respond to it with evidence or argument. This amounted to a violation of the common law duty to act fairly and s7 of the Charter. Though s11 of the Parole Act excludes a right to a hearing on an application for day parole it does not exclude the right of the prisoner to be informed of the case against him. Because the issue was not raised, the court declined to decide whether or not s7 required a hearing in day parole matters. The court did hold that a decision to grant or refuse day parole was a decision pertaining to "liberty and that the s7 of the Charter" fundamental justice requirement had not been complied with in the circumstances. The court would not find any "reasonable limits prescribed by law" effecting the situation to bring into play s1 of the Charter.
Faulkner v National Parole Board - Unreported, May 27, 1992, No. A-1099-90 (FCA) (Butterworths No. 37944)
	- After 4 days on day parole the applicant was arrested and charged with armed robbery. The parole authorities issued a war- rant of suspension under s22 of the Parole Act. The Board held a hearing and revoked the applicant's day parole and refused to recredit him with any of the earned remission (1000 days) then standing to his credit. At the hearing, one of the members made the following comment. Well, the day parole termination is only applicable where a day parole is terminated through no fault of the individual". The applicant argued that by those words the Board unduly fettered its discretion and foreclosed the possibility that aside from cancelling the suspension (which was hardly likely) or revoking the parole, it had the option of terminating the parole in accordance with s16(1)(e). On appeal, the court held that the words used by the member did not support the applicant's position. Ultimately, the Board had specifically reserved to the applicant the right to reapply for credit of remission following disposition of the outstanding robbery charges. There was no prejudgment of the issue and no breach of the duty of fairness.
See also Beasley v National Parole Board -Unreported, January 29, 1992, No. T- 3209-91 (FCTD) under Parole Act s22.
S16(2)
Re Skitt and Solicitor General of Canada et al- [1976] 1 FC 556, 29 CCC (2d) 392 (TD)
	- The power to "terminate" day parole in s10(2) does not cancel the power in s19(1)(e) to "revoke the parole of any paroled inmate" which includes a day parolee
See also Ziatas v National Parole Board; supra.
See also R v Cardinal [1985] 6 WWR 62 (Alta CA) -The process of holding warrants pending a person's release on parole is contrary to the purposes of parole and disruptive of a parole plan and in the circumstances was contrary to s11 (b) of .the Charter and the new charges were quashed to relieve against the unreasonable delay, there being no acquiescence and the accused having been ill prejudiced.
See also, H v The Queen and National Parole Board (FCTD), where prohibition was granted to prevent the Board from considering suspicions where it could not disclose the detail of those suspicions adequately to enable the applicant to fairly respond. A new hearing before a newly constituted panel was ordered in the interests of the appearance of fairness and fairness itself.
17. Personal interview - Subject to such regulations as the Governor in Council may make in that behalf, the Board is not required, in considering whether parole should be granted or revoked, to personally inter- view the inmate or any person on behalf of the inmate.
[RSC 1970 cP-2 s 11; 1976-77 c53 s26]
Editorial Note - Sections 15 and 16 of the Regulations now require a hearing before not less than two members of the Board when carrying out a review under s8(1) (now s15(1)) of the Act and s20 (now s25) requires a hearing after suspension of parole and before revocation, where requested.
Ex patte Hilson - (1973), 12 CCC (2d) 343 (Ont HC)
	- This section clearly shows the intention of Parliament that the limitations of the rules of natural justice are not 1to apply to the National Parole Board in its decisions to revoke parole. These words confer on the Board a jurisdiction to act in a manner which would otherwise be an infringement of the principles of natural justice and their actions are not subject to review by the courts.
In Re Nicholson and in Re the National Parole Board- [1975] FC 478 (TD)
	- A decision of the National Parole Board to revoke mandatory supervision is a decision within the Board's administrative discretion and is not, in any way, a judicial determination. The liberty of a paroled inmate is a privilege extended to him by society through the administrative mechanisms of the Parole Board and not a "right". Hence, deprivation of that liberty through the same mechanisms is not impeded by any of the safeguards that stand between the individual and the collective will of society to interfere with his rights.
	See also Morgan v National Parole Board (1982) 65 CCC (2d) 216, 40 NR 471 (FCA) and Sango v National Parole Board -Unreported, January 26th, 1982, No. A-669-81 (FCA).
Meldum v National Parole Board - Unreported, May 25th, 1981, No. A-1681 (FCA)
	- The amendment to s11 of the Parole Act by s26 of the Criminal Law Amendment Act, 1977, (SC 1976-77, c53) and the new Regulation 20(2) that was adopted pursuant to that amendment, has not changed the nature of National Parole Board decisions from purely administrative ones to quasi-judicial decisions and, specifically, the Regulation now entitling a parolee to request a hearing, does not warrant the conclusion that the decision of the National Parole Board to revoke a parole is now required by law to be made on a judicial or quasi-judicial basis within the meaning of s28 of the Federal Court Act.
MacDonald v National Parole Board - [1986] 3 FC 157 (FCTD)
	- An inmate applying for day parole who has been given the opportunity to review all the material that the Board will be relying on, and who asserts no wish to add to them, has no right to an oral hearing. The principles of fundamental justice do not require that an inmate be afforded the opportunity of making oral submissions.
Staples v National Parole Board- (1985) 47 CR (3d) 186 (FCTD)
	- Whereas, prior to the Charter, it had been held in Beaumier v National Parole Board (1981) 1 FC 454 (TD) that this section expressly excludes the common law requirement of fairness as to holding a hearing on applications for day parole, the provisions of s7 of the Charter may well have changed this but the court declined to decide the question in the circumstances. It was held, however, that a decision to grant or refuse day parole was a decision pertaining to "liberty" and was not distinguishable from a decision to revoke parole. If distinctions are to be made, they should result at differences in the requirements of fundamental justice with the kinds of limitations permitted by s1 of the Charter. Section 7 of the Charter requires that an applicant for day parole be made aware of the substance of the materials adverse to his cause that the Board will be considering in order that he may respond to it with evidence or arguments. There is, however, no obligation on the Board to gather evidence that the applicant wishes to put before the Board.
18. (1) Parole and mandatory supervision certificates - Where the Board grants parole to an inmate, or an inmate is released from imprisonment subject to mandatory supervision, the Board shall issue a parole certificate or mandatory supervision certificate under the seal of the Board and in a form prescribed by it and cause the certificate to be delivered to the inmate, who shall sign the certificate, and the Board shall cause a copy of the certificate to be delivered to the inmate's parole supervisor.
(2) Refusal to sign certificate - Where an inmate refuses to sign a certificate mentioned in subsection (1), the inmate shall nevertheless be subject to the conditions of the release.
[RSC 1970 cP-2 s12; AS 1985 c35 (2nd Supp) s6]
19. (1) Effect of parole - The term of imprisonment of a paroled inmate shall, while the parole remains unrevoked, be deemed to continue in force until the expiration thereof according to law, and, in the case of day parole, the paroled inmate shall be deemed to be continuing to serve his term of imprisonment in the place of confinement from which he was released on that parole.
(2) Idem - Until a parole is suspended or revoked, or a day parole is terminated or except in accordance with the terms and conditions of a day parole, the inmate is not liable to be imprisoned by reason of his sentence and shall be allowed to go and remain at large according to the terms and conditions of the parole and subject to the provisions of this Act.
(3) Term deemed completed - Notwithstanding subsection (1), for the purposes of subsection 50(2) of the Immigration Act, section 24 1of the Extradition Act and section 17 of the Fugitive Offenders Act, the term of imprisonment of a paroled inmate, other than an inmate on day parole, shall, while the parole is not terminated or revoked, be deemed to be completed.
[RSC 1970 cP-2 513; 1974-75-76 c93 599; 1976-77 c52 s128 and c53 527; 1977-78 c22 s16; AS 1985 c35 (2nd Supp) s7]
Judicial Consideration -
Litwack v National Parole Board - (1986) 26 CCC (3d) 65,51 CR (3d) 53 (FCTD)
	- The imposition of terms and conditions on parole or mandatory supervision is subject to s7 of the Charter principles of fundamental justice which require not only procedural fairness but also decisions that are reasonable in substance and not "patently unreasonable".
Jackson v The Queen - (1979), 44 CCC (2d) 65 (SCC)
	- The amendments to the Parole Act by the Criminal Law Amendment Act, 1977, SC 1976-77, c53 (effective October 15, 1977) have the effect of permitting the National Parole Board to revoke a day parole which began and ended after the coming into force of such amendments. Consequently, the deeming provision of s13 no longer has the effect of raising an ambiguity in the legislation in relation to the Board's powers to revoke or terminate day parole, as it did prior to these amendments (see also R v Hales (1974), 18 CCC (2d) 240 (Man CA) and Ex parte Carlson (1975),26 CCC (2d) (Ont CA) as well as Zong v Commissioner of Penitentiaries, [1976] FC 657 (FCA) dealing with the situation prior to the amendments, and R v Agg, Unreported, June 29, 1978 (Ont CA), also dealing with the situation subsequent to the amendments.
MacLean v Attorney-General Canada et al - [1980] 1 FC 163 (TD)
	- Similarly, the Board has the power to revoke a day parole which was granted prior to the October 15, 1977 amendments and revoked thereafter, particularly in light of the new s20(2) and following the reasoning in Jackson, supra.
Re Meredith - Unreported, May 16, 1979 (Ont HC)
	- A prisoner on mandatory supervision is, by virtue of s13, deemed to be continuing to serve his sentence and consequently the words "before the expiration of that sentence" in s659(2) of the Criminal Code apply to such a person.
Re McCaud - [1965] 1 CCC 168, 43 CA 252 (SCC)
	- There is no contradiction between this section (then s11) and s20 (then s16) of the Parole Act.
R v Hales - (1974), 18 CCC (2d) 240, 34 CANS 122 (Man CA)
	- The provisions of s13(1) deeming the prisoner on day parole to be continuing to serve his term of imprisonment override the provisions of s20(1) (pre-October 15, 1977 amendments) so that a day parole cannot be revoked but only terminated under s10(2). Otherwise the day parole would have to re-serve time he is deemed to be serving and lose statutory remission standing to his credit at the time he was granted day parole.
Ex parte Carlson - (1975), 26 CCC (2d) 65 (Ont CA)
	- The power to terminate day parole under s10 can be used to explain the deeming clause of s13(1) making it unnecessary on termination to go through the procedure of warrants of apprehension and recommitment. Section 20 (old section) is, however, specific as to the necessity of "recommitment" and therefore seems inapplicable to day parolees who, by virtue of s13(1) are deemed to be still "committed" to their place of imprisonment. Although an alternative construction is available, because Parliament has not made its intention clear, the parolee is entitled to the benefit of the ambiguity.
Zong v The Commissioner of Penitentiaries - [1976] 1 FC 657, 29 CCC (2d) 114 (FCA)
	- A day parolee can be forfeited pursuant to s21 (old section now abolished) and the parolee will lose all credit for time serviced, including statutory and earned remission from the date of release on parole until it’s forfeited. The interpretation of s13 in Hales, supra, is incorrect as this section must be construed to mean that provided the inmate's parole is not revoked or forfeited he is deemed to be serving his term of imprisonment while he is on parole, but upon revocation or forfeiture he loses the benefit of this provision and is required by the terms of s20 or s21, as the case may be, to serve the portion of his term of imprisonment that remained unexpired at the time his parole was granted. In rejecting Carlson, supra, it was found that no reasonable uncertainty as to legislative intention arose of which the benefit must be given to the parolee, when one considers the serious conduct which causes forfeiture.
See also, H v The Queen and National Parole Board (FCTD), where prohibition was granted to prevent the Board from considering suspicions where it could not disclose the detail of those suspicions adequately to enable the applicant to fairly respond. A new hearing before a newly constituted panel was ordered in the interests of the appearance of fairness and fairness itself.
Re Vidlin and The Queen - (1978), 38 CCC (2d) 378 (BCSC)
	- By virtue of s13(1) a sentence continues to run until the expiration thereof, unless revoked or forfeited. The Parole Board ceases to have any power to revoke or forfeit parole after the sentence has expired. Section 13(2) provides that a paroled inmate cannot be imprisoned unless his parole is "revoked, forfeited or suspended." There is no provision which prevents the sentence from running during the period of suspension of parole. Therefore a prisoner who is released on mandatory and is then suspended before expiry of his sentence, continues to serve his sentence and is entitled to release upon expiry of that sentence unless his parole is revoked or forfeited prior thereto.
Keeler v The Queen - Unreported, June 16, 1982, No. T-5215-80, Toronto (FCTD)
	- Where inmate was convicted in 1969 while on parole, for offences to which he was sentenced to 12 years and two years consecutive, he applied to determine whether his sentence had been properly recalculated. It was held that since s13 of the Parole Act, 1958, had not yet been repealed at the time of conviction, he was required to serve the sentence for the first conviction consecutive to the remainder of the sentence for which he had been paroled, even where the first conviction was for the second offence, which could have affected the calculation under the new s13.
See In Re Bishop -Unreported, January 13, 1984 Vancouver No. CC832024 (BCSC) (Annotated under s25) where the prisoner was suspended then revoked and subsequently arrested and returned to custody prior to the expiry of his sentence. In that case the court held that on suspension, the parolee's authority to be at large was withdrawn and he was no longer on "parole" as that word is defined in s2 of the Act. Therefore, the time spent out of custody between the date of suspension and the date of revocation did not count towards his sentence.
Logan v Director of William Head Institution and National Parole Board - Unreported, May 30,1986, No. 86/1307, Victoria (BCSC)
	- By virtue of s15(2) of the Parole Act, this section expressly applies to mandatory supervision and consequently, the term of imprisonment an inmate is serving is, by statute, declared not to be shortened. Bearing in mind this statutory context, the words "remission" in s24(1) of the Penitentiary Act do not mean "cancelled" or "expunged" and does not result in a reduction of the actual sentence imposed by the court. The word "remission" does not necessarily mean "forgiveness" but carries with it the concept of merely abstaining from enforcing an existing right without bearing the connotation of cancelling that right.
19.1 Term to include period of remission - Where
(a)	authority is granted to an inmate under this Act to be at large during the term of imprisonment of the inmate, or
(b)	a person who is at large by reason of statutory or earned emission is subject to mandatory supervision under this Act,
this term of imprisonment of the inmate or person, for all purposes of this Act, includes any period of statutory remission and any period of earned remission standing to the credit of the inmate or person when released.
[RS 1985 c35 (2nd Supp) s8]
20. (1) Consecutive and concurrent sentences - Where, either before, on or after the coming into force of this section, a person sentenced to a term of imprisonment that has not expired is sentenced to an additional term of imprisonment, the terms of imprisonment to which the person has been sentenced shall, for all purposes of the Criminal Code, the Penitentiary Act, the Prisons and Reformatories Act and this Act, except subsections (1.1) and (1.2), be deemed to constitute one sentence consisting of a term of imprisonment commencing on the earliest day on which any of the sentences of imprisonment commences and ending on the expiration of the last to expire of those terms of imprisonment.
(1.1) Interruption - Where an inmate whose parole has not been terminated or revoked is sentenced to a consecutive term of imprisonment, the sentence the inmate was serving on parole is interrupted and is not resumed until the later sentence has expired or until the parole of the inmate has been terminated or revoked.
(1.2) Additional terms - Where an inmate referred to in subsection (1.1) is sentenced to an additional term of imprisonment while the sentence being served on parole is interrupted,
(a)	if the additional term is concurrent with the later sentence, the later sentence and the additional term shall, for all purposes of the Criminal Code, the Penitentiary Act, the Prisons and Reformatories Act and this Act, be deemed to constitute one sentence consisting of a term of imprisonment commencing on the day on which the later sentence commences and ending on the expiration of the last to expire of the terms of imprisonment; and
(b)	if the additional term is consecutive to the later sentence,
	(i)	in the case of an inmate who has been granted, with respect to the later sentence, parole that is not revoked or terminated, the rule set out in subsection (1.1) applies, and
	(ii)	in any other case, the rule set out in paragraph (a) applies.
(1.3) Concurrent and consecutive terms - Where an additional term referred to in subsection (1.2) is concurrent with or consecutive to the sentence interrupted pursuant to subsection (1.1), the additional term shall be deemed to be concurrent with or consecutive to the later sentence only.
(1.4) Revocation or termination - Where a parole of an inmate referred to in subsection (1.1) is terminated or revoked, the inmate shall serve the total of
(a)	the unexpired portion of any sentence being served on parole; and
(b)	the unexpired portion of any later sentence.
(1.5) Calculation of sentence - The unexpired portion of a sentence referred to in paragraph (1.4)(a) shall, where the parole has been revoked, be calculated in accordance with subsection 25(2).
(1.6)For the purpose of this section, "later sentence" means
(a)	the consecutive term referred to in subsection (1.1); or
(b)	the sentence determined in accordance with subsection (1.2).
(2) Interpretation - This section does not affect the time at which any sentences that are deemed by subsection (1) to constitute one sentence commence pursuant to subsection 721(1) of the Criminal Code.
[RSC 1970 cP-2 s14 and c31 (1st Supp) s1; 1977-78 c22 s19; AS 1985 c35 (2nd Supp) s9]
Editorial Note - For subsection 721(1) of the Criminal Code see Vol. 1
Judicial Consideration -
Ex Parte Hudon - (1973) 12 CCC (2d) 236 (Que CA)
	- An appeal from the dismissal of an application for habeas corpus was dismissed where the appellant had been sentenced to imprisonment, then released on parole and then further convicted of theft while on parole. As a result of his conviction, his parole was forfeited pursuant to s21 of the Parole Act. It was held that s14 did not apply determine the commencement of the appellant's sentence because upon his conviction, he was on parole and not "an inmate in confinement" notwithstanding the fact that by virtue of other provisions of the Parole Act he was deem- ed to still be serving his sentence.
AG of Canada v Booth and Baker - Unreported, September 17, 1979 (Ont CA)
	- Two prisoners' applications were heard together. Both were sentenced to prison and then released on mandatory supervision. While on mandatory, they committed other offences and were arrested and held in custody pending their trial. Their mandatory supervision was suspended but then the suspensions were cancelled. The prisoners remained in custody, denied bail and were later convicted and given concurrent sentences. The Court held that s14 did not apply to affect the calculation of their sentences. It is implicit in the judgment that because the prisoners were not in confinement in a federal penitentiary they were not "inmates in confinement" when sentenced to the additional terms and therefore s14 did not apply.
Garber v Director of Matsqui Institution - Unreported, July 11, 1985, No. CC851101 (BCSC)
	- A prisoner was serving a sentence and was then released on mandatory supervision. While on mandatory he was charged with a new offence and obtained bail on that charge. His mandatory supervision was then suspended and he was returned to custody but after a post-suspension hearing the suspension was cancelled and the prisoner was again released on mandatory supervision. A year later, he came to trial on the outstanding charge and pled guilty. Later he was sentenced to six months imprisonment. The sentence imposed was deemed to be concurrent. He was then recommitted to custody and brought habeas corpus, arguing that s14 was applicable to merge the sentences. The court held that s14(1)(b) could not apply because the applicant was "not in confinement" when the new sentence was imposed. The Court further held that s14(1)(a) did not apply because if it did, there would be no necessity for the provisions of s14(1)(b). The Court further accepted that the use of the word "person" in s14(1)(a) as opposed to "inmate" as used in s14(1)(b) indicated that Parliament intended that s14(1)(a) apply when two or more terms of imprisonment are imposed at the same time.
Beatty v AG of Canada et al - Unreported, December 20, 1977 (FCTD)
	- This section is legislation which interferes with vested rights and is not retrospective legislation. If it is retrospective, the words are not ambiguous and accordingly both the presumption against retrospective operation are rebutted and the plain words of the section must be given effect to.
Re Clarke - (1977) 35 CCC (2d) 217 (Ont CA)
	- This section is not ambiguous and was clearly intended to have retroactive effect and consequently it applies to all sentences no matter when they were imposed for the purpose of calculating forfeiture of remission.
Re Dean and The Queen - [1965] 1 CCC 168, 43 CA 252 (SCC)
	- This section is retroactive resulting in the merger of two terms imposed on March 24, 1970 into one sentence. Consequently a subsequent consecutive term imposed December 24, 1970, and expressed in the warrant of committal as "consecutive with sentence now serving" means consecutive to the merged single term sentence. Further, s14(2) expressly excludes the operation of s14(1) on s649(1) of the Criminal Code and consequently implies that s14(1) does effect all other relevant sections of the Code.
Re Carr and The Queen - (1979) 46 CCC (2d) 1 (BCCA)
	- An accused serving an indeterminate portion of his sentence in a reformatory escaped and was then sentenced for the escape pursuant to s137(1)(b)(ii) of the Code to serve that sentence in a penitentiary, although the sentence was for less than two years. By virtue of s659(6.1) of the Code the unserved remanet of the indeterminate sentence was extinguished. The provisions of s14 of the Parole Act did not have the effect of converting the indeterminate sentence into a definite sentence.
Re Sowa and The Queen - (1980) 50 CCC (2d) 513 (Sask CA)
	- Section 137 of the Code as it read on October 15, 1977 is not retroactive and consequently a prisoner's sentence for escape prior to that date has his sentence calculated on the basis of s137 as it read at that time. Further, the provisions of this section must be read subject to s137 as it then read. Consequently, a prisoner is required to serve his sentence which commences as of the date of conviction for escape and not as of the date his original sentence prior to the escape commenced. However, once s137 has been applied to determine the sentence, then the remaining provisions of the Parole Act apply.
See also Re Lauzon and R (1981) 58 CCC (2d) 20 (Ont CA).
R v Quinn - Unreported, June 18, 1980, CC800649 (BCSC)
	- A prisoner escaped and was apprehended and when in confinement was sentenced to an additional term for other offences exceeding the sentence imposed for the escape together with the remainder of the term he was serving. It was held that the term "that resulted in his being in confinement" was the original term and confinement from which he escaped. The Court stated that this must be so in order to give effect to the meaning and intention of s14(1) of the Parole Act and s137(1) and (2) of the Code so that remission earned in respect of a term that resulted in the original confinement would be credited to an additional term imposed on an inmate in confinement and so that remission earned prior to an escape will be credited to the portion of the sentence of the inmate remaining to be served. If the purpose of the legislation is to be served, the prisoner must be credited with the remission earned from the date of the original term that resulted in his confinement. The Court disagreed with Sowa and said that the question is not whether a new sentence has been imposed, but rather what the term was that resulted in the inmate being in confinement. On the facts of this case the term resulted from a sentence imposed prior to the escape.
See also Re Westad and The Queen (1981) 59 CCC (2d) 273 (Alta CA) annotated under s137 of the Code.
Re MacIntyre and The Queen - (1983), 70 CCC (2d) 542 (FCA)
	- While agreeing with the result in Sowa, supra, the Federal Court of Appeal disagreed with the statement of the Court in Sowa that s137 of the Code as it existed in 1973 imposed a new sentence. This Court held that s14 of the Parole Act applies to the various sentences even when s137 of the Code takes effect. The distinction between s24.2 of the Penitentiary Act as it now reads and s22 of the Penitentiary Act as it was then in force was accepted. (See Cowan, D.J. at pp. 22-21). Consequently, the decision in Sowa is limited to declaring a formula upon which to calculate statutory remission only and that decision is confined to the scope of the Clarke decision, supra. Here the prisoner escaped in 1976 and was then captured and convicted of offences committed at large and the of- fence of escape itself. He claimed entitlement to earned remission under s24.2 of the Penitentiary Act equivalent to one-third of the sentence "he was then serving" and that his sentence was to be determined through s14 of the Parole Act. The Court held that s137(1) of the Code did not have the effect of imposing a new sentence which included his previous remanet but only determined that he would have to serve the term he was sentenced to for the escape prior to serving the remanet. Therefore s14 continued to apply with respect to the date of commencement of his sentence and operated to determine the sentence he was serving at the time of his escape and the sentence being served after the imposition of the sentence for escape and all of this was not changed by s137 of the Code. Macintyre's sentence commenced on the date the earliest sentence was imposed.
R v Burbidge; R v McClean - Unreported, September 27,1984 (Ont HC)
	- This section was held not to apply to blend the sentences of two prisoners who had originally been sentenced to federal terms and then released on mandatory supervision and were then charged with new offences resulting in their mandatory supervision being suspended and revoked. They did not make bail on the new charges and, consequently, they were kept in a provincial facility and never returned to a penitentiary. Prior to their federal warrant expiry date, but after the date upon which they would have been entitled to their release pursuant to s15(1) of the Parole Act, their remission not exceeding sixty days, they were both sentenced to provincial reformatory terms. They brought habeas corpus applications arguing that they should be properly confined in a penitentiary in order that their sentences might blend in accordance with s14. The court held that because the days of remission earned was less than sixty, their sentences expired prior to the new sentences on the new charges. Therefore, they were no longer "penitentiary" prisoners and s14 was not applicable because they were not "in confinement" within the meaning of s14(1) which refers to confinement resulting from the imposition of a term of imprisonment. They were held to be properly confined in a provincial institution.
Ex parte Dodge - [1972] 1 OR 752 (HC)
	- Where a prisoner was released on parole prior to the effective date of Parole Act amendments (released under the 1958 Act which was amended in 1969), and is subsequently taken into custody upon suspension and revocation of his parole after the amendments which if applied to his case would substantially increase the length of his sentence, it is a matter of elementary justice that his remaining term of imprisonment should I not be increased by the new law being given retrospective effect, in the absence of much clearer language in the statute indicating this should be done.
R v Triska - (1971), 7 CCC (2d) 322 (Sask CA)
	- Parliament intended that this section should be effective in respect to sentences imposed both before and after the section came into effect. Consequently a prisoner who is in confinement and is then sentenced to an additional term, is, for the purposes of this Act, deemed to be serving one sentence commencing on the day he was first sentenced and expiring upon the date upon which the accumulated terms would expire, notwithstanding that the additional term was imposed before this section came into force.
R v Ismond - [1976], 3 WWR 677 (BCSC)
	- The phrase "term of imprisonment" in this section must be considered without regard to the effects of any statutory or earned remission on the sentences imposed, in order to calculate the beginning and end of the single term sentence. Then, once the length of sentence is determined, the statutory and earned remission are calculated thereon.
Ex parte Beaucage - (1977), 73 DLR (3d) 458 (SCC) affirming (1976), 31 CCC (2d) 219 (Ont CA)
	- The effect of this section is that a prisoner sentenced prior to August 1, 1970 (effective date of s15) who is then, while still in custody, sentenced to another term (consecutive or concurrent) after August 1, 1970, is deemed to be serving one single term sentence. Consequently, on his release thereafter, otherwise than on parole, he is required to be subject to mandatory supervision pursuant to s15 on the remainder of the deemed single sentence and the remission applicable to the entire single term sentence is at risk throughout this period, not just the remission on the second sentence.
Re Blomme - Unreported, April 2, 1985, No. CC850505 (BCSC)
	- A prisoner was sentenced to three consecutive sentences of three different dates, the first sentence for four years, the second sentence for four years and the third for one year for a total of nine years. The sentences were merged by applying s14 of the Parole Act. Approximately four years after the first sentence was imposed, he went unlawfully at large, having served 1,356 days in custody and leaving approximately 853 days to be served and another 1,051 days earned remission which would have had to have been served out of custody under mandatory supervision. Approximately three years later he was arrested in the United States and returned to Canada pursuant to an extradition order pertaining only to his second conviction and with no reference to the other two convictions. The other two convictions were not extradictable offences. S33 of the Extradition Act provides that a person who is surrendered by a foreign state pursuant to an extradition arrangement is not, until after he has been restored or had an opportunity of returning to the foreign state, subject on contravention of any of the terms of the arrangement to a prosecution or punishment in Canada for any other offence committed prior to his surrender for which he should not, under the arrangement, be prosecuted. Article 12 of the Extradition Treaty between Canada and the United States of America provides that the person extradited shall not be detained, tried or punished in the territory of the requesting state for an offence other than that for which extradition has been granted, unless he has not left the territory of the requesting state within 30 days after being free to do so. In this "unique" situation, the Court rejected arguments by the petitioner's counsel and respondent's counsel and held that the combined affect of s645(4) of the Criminal Code, s14 of the Parole Act and s24 of the Penitentiary Act required that the sentence be calculated as follows:
	(1)   The prisoner was originally sentenced to nine years, bearing in mind the C provisions of s645(4) of the Criminal Code and s24 of the Penitentiary Act;
	(2)   When the prisoner walked away, he had served all of the in custody portion of this first four year sentence and part of the in custody portion of the second four year sentence;
	(3)   Only after his extradition and recommittal did the Extradition Act and Treaty come into play and have an affect on the unserved portions of the aggregate sentence he was serving;
	(4)   When the prisoner walked away, he had been in custody for 1,356 days of which 974 days were the in custody portion and 382 days remaining. That 382 days was to be considered as part of the in custody portion attributable to the second conviction. Consequently, the prisoner commenced serving the second sentence shortly before he walked away;
	(5)   The in custody portion of the second sentence was 974 days and that should be reduced by 382 days served, leaving a balance of 594 days to be served when he was returned after the extradition proceedings;
	(6)   A sentence of 594 days is approximately one year, seven months and 19 " days and therefore the Court computed the new mandatory supervision release date based on that sentence;
	(7)   Since the new mandatory supervision release date was still nine months away, the application for habeas corpus was dismissed.
Robillard v The Queen - Unreported, October 16, 1985 (Que Ca)
	- A prisoner serving a sentence of preventative detention, was sentenced to various other terms of imprisonment during the course of that sentence of preventative detention which included concurrent and consecutive terms. He appealed his sentence, arguing that the sentences for the offences subsequent to the sentence of preventative detention that were slated to be consecutive to that preventative detention sentence was illegal. The court held that a sentence could not be made consecutive to the indeterminate sentence. However, sentences could be imposed for various offences and be consecutive to one another while still being concurrent in relation to the preventative detention sentence. This approach was consistent with s14 of the Parole Act and would enable the Parole Board to take into account offences committed while under sentence of preventative detention in fixing the single term sentence under s14 and its expiry date which thereafter would still be subject to the preventative detention sentence. The court affirmed that a sentence cannot legally be imposed to be served consecutively to a sentence of life imprisonment or consecutive to a sentence of indeterminate duration. However, sentences consecutive to each other and subject thereafter to preventative detention sentence is consistent with s14, so long as the conditions of s645 of the Criminal Code were met. A sentence of preventative detention under s688 of the Code is a sentence for an offence within s645(4) of the Criminal Code.
Re Frankum and The Queen - (1987) 29 CCC (3d) 447 (BCCA)
	- A prisoner was serving his sentence, escaped and committed another offence. He was first tried and sentenced for the new offence and given a further term of imprisonment. He was then tried and sentenced for the escape. That latter sentence was stated to run after the expiry of the term which had been imposed for the offence which he had committed while he was at large. This did not comply with the provisions of s137(1) of the Criminal Code because the words "consecutively" mean, bearing in mind the French version, the "the word applies to lengthy, unexpired portion of the original sentence with the sentence for escaping lawful custody, so that the sentence for escaping lawful custody must follow immediately after the remanet of the original sentence". Section 14(1) of the Parole Act should not be applied to affect the interpretation that should be given to s137 to make the sentence of escaping follow immediately after the remanet of the original sentence. If s14(1)(a) is confined to a situation where two sentences are imposed simultaneously, then neither para (a) nor para (b) would apply.
Lylick v AG Canada, Commissioner of Corrections and Warden of Drumheller Institution - [1985] 3 WWR 50 (FCTD)
	- "For all purposes of the Criminal Code, the Penitentiary Act, the Prison and Reformatories Act and this Act" in this section, mean that this section applies in the interpretation of s659(5) of the Criminal Code in determining the place of detention of an individual and the meaning of the words "and the aggregate of the unexpired portions of those terms at that time amounts to two years or more" in s659(5). Consequently, it was held that the meaning of those words in s659(5) in the calculation of a sentence mean that only the days actually served in prison are to be deducted at the time at which the subsequent term of imprisonment is imposed and not any earned remission whether past or potential. This does not mean that earned remission is lost but simply not taken into account in determining the place of imprisonment.
	See also annotation under s6 of the Prison and Reformatories Act and s659 of the Criminal Code.
Re Ziteck and the Queen - (1986) 30 CCC (3d) 60 (Ont CA)
	- This section does not affect the time at which a sentence is deemed to commence pursuant to s649(1) of the Criminal Code. Where three sentences are imposed on one day and the latter two sentences are stated to be consecutive to the first and then the first to set aside on appeal and a new trial ordered, the latter two sentences can no longer be consecutive to the first sentence and those latter sentences are deemed to commence on the day they were imposed.
R v Currie - (1982) 65 CCC (2d) 415 (Ont CA)
	- A probation order should not be imposed pursuant to s663(1)(b) of the Criminal Code when it is made to follow a sentence of not more than two years if that sentence, when added to the remaining portion of another sentence then being served, and to which it is made consecutive will, in its totality, exceed two years. Section 14 of the Parole Act does not, in itself, avail to make the sentence pronounced in such circumstances invalid as in contravention of s663(1)(b) of the Code. It is the intention of Parliament itself as it emerges from that section of the Code to limit the making of probation orders to situations where either the sentence to be served or the totality of all sentences then to be served will not exceed the period of two years specified. (See also R v Young (1980) 4 WCB 428 (BCCA).)
Tschritter v National Parole Board - (1990) 10 WCB (2d) 268 (BCSC)
	- The applicant's mandatory supervision was suspended and prior to being revoked he was sentenced for offences committed while on mandatory supervision. One of the sentences imposed was consecutive to his earlier sentences. By virtue of s20(1. 1) of the Parole Act, the effect of the consecutive sentence was to "interrupt" the sentence which the inmate had been serving on mandatory supervision, thus requiring him to serve his new sentences before serving the remnant of his original sentence. The court said that no one compelled the applicant to plead before he had been revoked and there was no breach of ss7or 9 of the Charter: The court agreed that though Tschritter would have served less time had he been sentenced after the revocation of his parole, nevertheless there were no breaches of his Charter rights.
Fontaine v Correctional Service of Canada - Unreported, November 22, 1990, No. T-1657-90 (FCTD) (Butterworths No. 35012)
	- The applicant was released from custody subject to mandatory supervision on February 2, 1987. His mandatory supervision was suspended on January 17, 1988. On August 18, .1988, the applicant was convicted of further offences and sentenced to twelve months in custody consecutive to all other offences. On October 31, 1989, the applicant was convicted of a further offence of being an accessory to a robbery resulting in a sentence endorsed as "eighteen months in prison to be served concurrently to any other sentence now being served." The language of the sentence is open to the interpretation that the sentencing judge intended the sentence to be concurrent to all sentences being served, including the remanet of the initial sentence imposed and the sentence of August 18, 1988. This would undoubtedly be the result were it not for ss717.4 and 721.1 of the Criminal Code and s20 of the Parole Act. Section 20 of the Parole Act restricts the authority of the sentencing judge in awarding a concurrent sentence. The effect of the 12-month consecutive sentence was to interrupt the original sentence such that the original sentence was not being served. The effect of subs (1.3) of s20 of the Parole Act is that the term of "eighteen months in prison to be served concurrently any other sentence now being served" must be concurrent only with the sentence of twelve months which had been imposed on August 18, 1988 and not with any other sentences.
Jones v The Queen - Unreported, September 21, 1990, No. T -218-90 (FCTD) (Butter- worths No. 34859)
	- The plaintiff sought a declaration that a twelve-month concurrent sentence imposed upon him on February 21, 1989 should be regarded as concurrent to both a six-year sentence imposed on him on February 10, 1984 and to a six-months sentence imposed on him on December 1, 1988 that was made consecutive to the six-year sentence. The question arose as to whether these later sentences ran concurrently with each other and with the original term of imprisonment or whether they were consecutive. The court found that, although the provisions are complicated, the language of s20(1.3) is unambiguous. While the latter two sentences are concurrent to one another, they interrupt the original sentence until they are served such that the ultimate effect is that the original sentence runs until interrupted by the later sentences, the totality of which runs consecutively to the original sentence and after which the original sentence resumes until expiry.
McClarty v The Queen (Correctional Service of Canada) - Unreported, April 27, 1992, No. CR 91-01-11462, Winnipeg (Man QB) (Butterworths No. 36957)
	- Prisoner applied for habeas corpus with cel1iorari in aid on basis that Respondent had erred in calculating his sentence with the result that the date established for his release on mandatory supervision and the warrant expiry date were incorrect. There were 3 issues before the court:
	(1)   Whether s20 of the Parole Act operates to entitle the applicant to full remission on previously existing sentences once the additional sentence and the earlier sentences have merged pursuant to s20 of the Parole Act and s25 of the Penitentiary Act. The Court held that s20 and s25 did not have the effect of nullifying the prior forfeiture of remission once merger of sentence occurs.
	(2)   Whether the applicant was deemed to be on parole for the purpose of sentence calculation during the period he was incarcerated in the U.S. On December 28, 1986 a court in Washington state sentenced the applicant to 18 months imprisonment for robbery. At that time he was out on mandatory super- vision. On December 29 pursuant to s22(1) of the Parole Act, a warrant suspending the applicant's parole was signed in Canada. The American authorities deported the applicant to Canada following completion of his sentence and he was recommitted to custody. Section 22(3) of the Parole Act requires the cancellation of the suspension of parole or a referral to the Parole Board within 14 days of recommitment. Neither course of action was followed. One month after the applicant's recommitment in Canada, the Parole Board revoked his mandatory supervision without a hearing. The applicant argued that the failure to refer the case to the Parole Board effectively cancelled the suspension of his parole from and after December 29. 1986. He argued that he was therefore on parole while serving time in the U.S. and entitled to credit for that time pursuant to s25(2) (e) of the Parole Act. The court held that the failure to comply with the provisions of s22(3) did not result in the cancellation of the period of suspension which occurred prior to the recommitment of the applicant. He was not on parole while serving time in the U.S.
	(3)   Whether the forfeiture of remission pursuant to ss25(2), (3) of the Parole Act infringes the applicant's rights under ss7, 9 and 12 of the Charter: There was no evidence before the court to support this allegation.
21. (1) Mandatory supervision - Where an inmate is released from imprisonment prior to the expiration of his sentence according to law solely as a result of remission, including earned remission, and the term of the remission exceeds sixty days, the inmate shall, notwithstanding any other Act, be subject to mandatory supervision commencing on the inmate's release and continuing for the duration of the remission.
(2) Effect of mandatory supervision - Paragraphs 16(1)(d) and (e), subsection 16(2), sections 17 and 19, subsections 20(1} and (1.1) to (1.6) and sections 22 to 25 apply to an inmate who is subject to mandatory supervision as though the inmate were a paroled inmate on parole and as though the terms and conditions of the mandatory supervision were terms and conditions of the parole.
(3) Inmate may choose to remain - Notwithstanding subsection (1), an inmate who is eligible for release subject to mandatory supervision may choose to remain in the institution to complete his sentence, but such a choice is not binding on an inmate who subsequently chooses to be released on mandatory supervision.
(4) Subsequent choice to be released - An inmates subsequent choice to be released on mandatory supervision shall be respected as soon as is reasonably possible, but the inmate shall not require to be released other than during the daylight hours of a normal work week.
(5) Repealed
(6) Application - This section applies in respect of persons who were sentenced to imprisonment in or transferred to any class of penitentiary on and after August 1, 1970.
[RSC 1970 cP-2 s15; 1976-77 c53 s28; 1977-78 c22 526; AS 1985 c35 (2nd Supp) s10]
Editorial Note - For the cases which held that "gating" under this section was illegal. see the annotations under s22 (formerly s16) of the Parole Act (infra) and in particular, R v Moore; Oag v The Queen, National Parole Bd and Warden of Edmonton Institution (1983) 4 CCC (3d) 216, 33 CR (3d) 97 (SCC).
Judicial Consideration -
Auger v Canadian Penitentiary Service et al - [1975] FC 330 (TD)
	- Where a prisoner's mandatory supervision was forfeited pursuant to the combined operation of ss15(2) and 17(1) of the Parole Act, a reference on his record to a "breach of parole" was not inaccurate.
Ex parte Lambert - (1975) 27 CCC (2d) 568 (Ont HC)
	- The effect of this section is to put mandatory supervision on the same foot as regular parole as far as revocation thereof is concerned.
Lambert v The Queen - [1976] 2 FC 169, 58 DLR (3d) 74 (TD)
	- Section 15(2) provides that s20 applies to an inmate on mandatory supervision as though on parole. Section 20 provides for the forfeiture of remission on recommitment upon revocation of parole. Consequently, a prisoner, released on mandatory supervision and then revoked will lose remission credits resulting in the recalculation of his sentence, just like a regular parolee.
Ex parte Beaucage - (1977), 73 DLR (3d) 458 (SCC) affirming (1976), 31 CCC (2d) 219 (Ont CA)
	- This section, providing for release on mandatory supervision as opposed to regular parole, applies to a prisoner who is sentenced to an additional term of imprisonment after August 1, 1970 (the date s15 became effective) notwithstanding that his original term was imposed prior to August 1, 1970, and that the second term was stated to be concurrent. By virtue of s14 the sentences merged to form one single term sentence.
Starr v National Parole Board - Unreported, December 1, 1982, No. T-7785-82, Winnipeg (FCTD)
	- Applicant's mandatory supervision was set to begin on a Sunday, and, according to the practice of the Board, he was given an Unescorted Temporary Absence Permit for the preceding Friday and Saturday. On Saturday he committed further crimes, was arrested, and detained in custody. Applicant sought to quash decision of Board revoking his mandatory supervision. Held: Application allowed; revocation quashed. Board was without jurisdiction since applicant had not yet been released on mandatory supervision and therefore had not breached it. He was not a paroled inmate within s10(1)(e).
R v Burbidge; R v McClean - Unreported, September 27,1984 (Ont HC)
	- "A prisoner is entitled to be released when the number of days served plus the number of days of remission earned equals the remanent of the original term, If the number of days of remission earned exceeds sixty, the prisoner, if he accepts such release, is released subject to mandatory supervision. If the number of days of remission earned is less than sixty, the sentence is terminated without mandatory supervision." Consequently, two prisoners who were released on mandatory supervision and then charged with new offences for which their mandatory supervision was suspended and revoked, but who were not sentenced on the new charges until they were within sixty days of their federal warrant expiry date and therefore entitled to their release without mandatory supervision, it was held that their sentences had expired prior to being sentenced on the new charges and that therefore s14 of the Parole Act was not applicable to blend the new sentences with the old and they were properly confined in provincial institutions.
Maxie v National Parole Board - (1985) 47 CR (3d) 22 (FCTD)
	- A prisoner who was on mandatory supervision was charged with new offences and his mandatory supervision suspended. He was then convicted of the offences and sentenced to consecutive terms of imprisonment. He was then revoked. He complained about his sentence calculation, arguing that s15(4) applied and that therefore he could not be revoked. The Court rejected his argument, holding that the revocation was effective under s15(2) and 10(1)(e). The words in s15(4) "and mandatory supervision is not revoked" mean in context "and where, or if, mandatory supervision is not revoked" and this clearly indicated that mandatory supervision is indeed revocable in such circumstances. (Subsection (4) was repealed by SC 1986 c43 s11(2) effective July 25, 1986)
Maxie v National Parole Board - (1986) 55 CR (3d) 143 (FCA)
	- On appeal, the decision of the Trial Division was affirmed. The Court of Appeal held that the Board had authority to revoke the applicant's mandatory supervision, notwithstanding, J the fact that he was already in custody as a result either of the suspension of his mandatory supervision or as a result of a new sentence imposed. At that point, s15(4) ceased to have any application, leaving the more general provision of s14(1) to apply.
Belliveau v The Queen - (1984) 13 CCC (3d) 138 (FCTD)
	- A constitutional challenge to the entire mandatory supervision system was rejected. Mandatory supervision and the loss of remission was found to be "reasonable limits" within a free and democratic society, within s1 of the Charter. The court held that it was not unrealistic to assume that some form of control on rehabilitation is indicated to assist prisoners in their gradual re-entry into the community unless some type of safeguard is warranted for the protection of that community. Secondly, there was no indication that principles of fundamental justice, as required by s7 of the Charter were disregarded in the Parole Act or were unobserved in the circumstances of the particular case. Further, the breaching of a key condition of the mandatory supervision program by the commission of another crime is a good cause for triggering the application of the Parole Act and imprisonment as a result cannot be said to be arbitrary under s9 of the Charter. Finally, the mandatory supervision program, which includes the possibility of loss of remission cannot be described as outrageous or excessive or beyond the rational bounds of morality. A prisoner who has breached the system loses remission and this cannot be said to be excessive or disproportionate. The program appears to be in accord with Canadian standards of decency and propriety and can be applied on a rational basis in accordance with ascertainable standards. It does not amount to cruel and unusual treatment or punishment. Nor does the revocation of mandatory supervision and loss of remission for new offences upon which a new term of imprisonment has been imposed amount to double jeopardy under s11(h) of the Charter.
Belliveau v The Queen - Unreported, May 22,1984, Nos. 289/83 and 91/94 (NBCA)
	- On appeal it was held that the failure to comply with conditions of release on mandatory supervision, which also involved the commission of new offences does not result in a violation of s11(h) of the Charter simply because punishment has been imposed for the new offences and loss of remission is incurred as a result of the revocation of mandatory supervision.
S21(6)
Sango v The National Parole Board - [1984] 1 FC 183 (FCTD)
	- The applicant was released on mandatory supervision and a few months later charged with new of fences. He was denied bail on the new charges. A warrant was then issued pursuant to s16 suspending his mandatory supervision to prevent a breach of term or condition of parole. He was then returned to a federal institution where he appeared before the Board for a post-suspension hearing pursuant to s16(4). Subsequent to the hearing the suspension was cancelled. The applicant then purported to elect to remain in the institution under s15(3) however the sentence administration took the position that once mandatory supervision had been suspended and then that suspension cancelled, that he no longer had the option to remain in the institution to serve his mandatory supervision in custody. He was therefore taken to a provincial facility to await disposition of the charges. He then pled guilty to the outstanding charges and received a one-year consecutive sentence. He claimed that he had been advised by his parole officer if he did that he would do his time in a provincial institution. However, a few weeks later he was returned to the federal institution and subsequently told that he would be brought before the Parole Board where his mandatory supervision was issued. The applicant sought prohibition to prevent the new hearing and any possible revocation. He argued that since the time of the first suspension of mandatory supervision he had never been released and therefore there was no post-release misbehaviour upon which to base a new revocation. He claimed that s15(4) overrides para. 10(1)(e). The court held that the Board was scrupulously correct in restoring the applicant's mandatory supervision during the time that he was merely charged with the offences alleged against him giving due regard for his constitutional right to be presumed innocent until proven guilty according to law. The Board could not know what the outcome in relation to the charges would be until the guilty plea was entered and it was only then that in regard to the pending charges post-release behaviour upon which revocation might be based was ascertained. The court followed the decision of the Federal Court of Appeal in Greenberg v National Parole Board et al (10 WCB 222) to the effect that the source of the Board's power to revoke parole is s10 and not s16 which is the source for suspension and that a revocation is not void simply because it is not preceded by a valid suspension and, further, that the Board was not "functus" because that principle did not apply to purely administrative authorities. The applications for prohibition were dismissed.
Dempsey v The Queen - Unreported, November 17,1986, No. T-1133-86 (FCTD)
	- The regime for mandatory supervision is not unconstituional and does not run afoul of ss7 and 15 of the Charter. The test for determining whether or not there has been a violation of s15 of the Charter which provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, resides in "the similar treatment of people who are similarly situated". Simply because federal prisoners are subject to mandatory supervision whereas provincial prisoners are not does not result in a violation of s15 of the Charter. The plaintiff failed to demonstrate that federal inmates are at all similarly situated with provincial inmates who have been adjudged to serve terms of imprisonment of less than two years. The mandatory supervision regime does not offend s7 of the Charter either. A prisoner can choose to go out on mandatory supervision or elect to remain in prison. The principles of fundamental justice in s7 do not require an adjudication or a hearing on the question of whether or not the prisoner is to go out on mandatory supervision.
Dempsey v The Queen and AG Ontario - Unreported, May 8, 1987, No. A-758-86 (FCA)
	- The decision of the Trial Division (supra) was upheld on appeal. The Court of Appeal concluded that there was ample evidence before the trial judge upon which to conclude that persons sentenced to federal penitentiaries are not similarly situated to provincial convicts who, have been adjudged to deserve sentences of imprisonment of less than two years. The countless considerations which lead to the imposition of more or less severe sentences provide an ongoing and acceptable basis for differentiation. Because such prisoners are not similarly situated, the mandatory supervision regime set out in the Parole Act does not offend s15 of the Charter by discriminating against federal convicts notwithstanding that provincial convicts may be released from incarceration free of comparable restraints on their liberty.
Logan v Director of William Head Institution and National Parole Board - Unreported, May 30,1986, No. 86/1307, Victoria (BCSC)
	- Section 15(2) makes s13 expressly applicable to mandatory supervision. Section 13 expressly declares that the term of imprisonment that an inmate is serving on parole is deemed to continue in force until the expiration thereof according to law. Section 10(1)(b) of the Parole Act expressly authorizes the Parole Board to impose any term or condition it considers desirable in respect of an inmate subject to mandatory supervision. Bearing in mind this statutory context, the word "remission" in s24(1) of the Penitentiary Act does not necessarily mean "forgiveness" but carries with it the concept of merely abstaining from enforcing an existing right without bearing the connotation of cancelling that right. Consequently, the word "remission" in its statutory context does not mean "cancel" or "expunged" and does not result in a reduction of the actual sentence imposed by the court so as to preclude the existence of mandatory supervision and the imposition of terms and conditions by the Board.
21.1 Effect of remission - Remission is credited, in accordance with the Penitentiary Act and the Prisons and Reformatories Act, against the sentence being served by an inmate and entitles the inmate to be released from imprisonment prior to the expiration of the sentence according to law unless the Board directs pursuant to paragraph 21.4(4)(a) that the inmate shall not be so released.
[RS 1985 c34 (2nd Supp) s5]
Judicial Consideration -
Re Evans and The Queen - (1987) 30 CCC (3d) 1 (Ont HC)
	- Parliament has clearly intended that this legislation be retrospective. These sections through s15.6 "limit the granting of parole in cases where a Board properly constituted, following legislative guidelines, withholds its parole granting power in the interest of public safety". Such a law does not violate the prohibition against arbitrary detention in s9 of the Charter, nor s11(i) of the Charter, nor article 15 of the International Covenant on Civil and Political Rights insofar as any allegation of a harsher penalty being imposed is concerned. This legislation does not change the sentence but only the manner in which the sentence will be served. There are arguments for against these sections amounting to a violation of s7 of the Charter but even if s7 is breached, the legislation is saved by s1 of the Charter. On the facts of the case, the procedural duty to act fairly was breached, the application for habeas corpus dismissed, and a new hearing ordered under s24(1) of the Charter. "While it cannot be said that the Board made the wrong decision or acted capriciously or without evidence, it is inherently unfair that a, decision carrying such serious consequences for the inmate should be made so quickly and summarily without any opportunity for the inmate to prepare, to seek advice, to review the evidence and perhaps even to adduce evidence of a psychiatric nature or otherwise that could have had an influence on the ultimate decision. There was no real opportunity to cross-examine the medical witnesses."
Re Evans and The Queen - (1987) 30 CCC (3d) 313 (Ont CA).
	- On appeal, the constitutionality of the new gating ss15.1 through 15.6 of the Parole Act was affirmed. The intent of Parliament to make this legislation retrospective or retroactive is clear. The legislation does discern itself with depriving an inmate of his right to "liberty" within the meaning of s7 of the Charter, but it does not authorize such a deprivation in breach of the "principles of fundamental justice". The sections simply give the Parole Board the power to change the degree of supervision required in circumstances within the legislative guidelines and criteria. They do not change the sentence, nor impose an additional penalty. They do no more than change the manner or condition under which certain in- mates would serve the balance of their sentence. However, before such a change can be effected, a procedural and substantive safeguard established by the Act must be complied with. They are designed to ensure a fair procedure and protect against arbitrary determination of rights. The legislative scheme does not violate s7 of the Charter, nor does it authorize the imposition of arbitrary detention. Section 1 of the Charter can be resorted to without hesitation if necessary.
Ross v Warden of Kent Institution et al - (1987) 57 CR (3d) 79 (BCCA); leave to appeal to SCC refused (1987) 59 CR (3d) xxxiv (SCC)
	- These sections of the Parole Act authorizing gating are not unconstitutional and are not inconsistent with s7 of the Charter. "Fundamental justice requires that the inmate know the case against him and have a fair opportunity to meet it." These provisions of the Parole Act and regulation 17(5) do not entitle the Board to withhold relevant information from the inmate so that he does not know the case that he must meet and have a fair opportunity of answering it. "It is not essential to comply with the principles of fundamental justice that he know the sources of all the information before the Board as long as he's informed of the substance of that information". While reg17(5) authorizes the Board to withhold details from the inmate which might disclose the identity of an informer, it does not authorize the Board to withhold the substance of the information. The effect of these new provisions of the Parole Act is to alter the right of an inmate to serve a portion of his sentence on mandatory supervision by qualifying that right.
Editorial Note - The Court of Appeal Decision (supra) reversed the decision of Meredith J, -Unreported, November 28, 1986, No. CC861770, Vancouver (BCSC) which held this legislation to be unconstitutional as unfairly threatening the liberty of inmates who have earned remission of their sentences. The Court also found regulation 17 of the Parole Act to be unconstitutional as unfair. The Court was of the view that these sections violated s7 of the Charter and were not saved by s1.
21.2 (1) Definitions -In this section and sections 21.3 to 21.6,
	"Commissioner" has the same meaning as in the Penitentiary Act;
	"community-based residential facility" means a place offering accommodation or treatment
	(a)	to paroled inmates and other persons, or
	(b)	exclusively to paroled inmates and inmates who are subject to mandatory supervision, and includes a psychiatric hospital or facility and a penitentiary designated pursuant to subsection 21.6(2);
	"inmate" means a person sentenced to imprisonment in or transferred to any class of penitentiary before or after the coming into force of this section;
	"presumptive release date" means, in respect of an inmate, the earliest day on which the inmate may be entitled to be released from imprisonment;
	"serious harm" means severe physical injury or severe psychological damage;
	"Service" has the same meaning as in the Penitentiary Act.
(2) Reference to expiration of sentence according to law - For the purposes of sections 21 to 21.6, a reference to the expiration of a sentence of an inmate according to law shall be read as a reference to the day on which the sentence expires, without taking into consideration any remission standing to the credit of the inmate.
[RS 1985 c34 (2nd Supp) s5]
Judicial Consideration -
"inmates"
Re Evans and The Queen - (1987) 30 CCC (3d) 1 (Ont HC)
	- There is no ambiguity in this definition of the word "inmate" and its intent is clear. It means that the legislation is retrospective. The transitional provision in clause 12 of Bill C-67 supports this interpretation.
Re Evans and The Queen - (1987) 30 CCC (3d) 313 (Ont CA)
	- On appeal, the constitutionality of the new gating ss15.1 through 15.6 of the Parole Act was affirmed. The intent of Parliament to make this legislation retrospective or retroactive is clear. The legislation does discern itself with depriving an inmate of his right to "liberty" within the meaning of s7 of the Charter, but it does not authorize such a deprivation in breach of the "principles of fundamental justice". The sections simply give the Parole Board the power to change the degree of supervision required in circumstances within the legislative guidelines and criteria. They do not change the sentence, nor impose an additional penalty. They do no more than change the manner or condition under which certain inmates would serve the balance of their sentence. However, before such a change can be effected, a procedural and substantive safeguard established by the Act must be complied with. They are designed to ensure a fair procedure and protect against arbitrary determination of rights. The legislative scheme does not violate s7 of the Charter, nor does it authorize the imposition of arbitrary detention. Section 1 of the Charter can be resorted to without hesitation if necessary.
21.3 (1) Case management review by Service - The Commissioner shall cause the case of an inmate to be reviewed by the Service, before the presumptive release date of the inmate, where the inmate is serving a term of imprisonment that includes a sentence imposed in respect of an offence mentioned in the schedule that had been prosecuted by indictment.
(2) Referral of case by Service to Board - Where the Service, after reviewing the case of an inmate pursuant to subsection (1), is of the opinion that
(a)	the inmate is serving a term of imprisonment that includes a sentence imposed in respect of an offence mentioned in the schedule that had been prosecuted by indictment,
(b)	the commission of the offence caused the death of or serious harm to another person, and
(c)	there are reasonable grounds to believe that the inmate is likely to commit, prior to the expiration according to law of the sentence the inmate is then serving, an offence causing the death of or serious harm to another person,
the Service shall, not later than six months before the presumptive release date of the inmate, refer the case to the Board together with all information that, in the opinion of the Service, is relevant to the case.
(3) Case referral by Commissioner to Chairman of Board - Where the Commissioner believes on reasonable grounds that an inmate who is serving a sentence imposed in respect of any offence, whether or not that offence is mentioned in the schedule or caused the death of or serious harm to another person, is likely, prior to the expiration according to law of the sentence the inmate is then serving, to commit an offence causing the death of or serious harm to another person, the Commissioner shall refer the case to the Chairman of the Board, together with all information in the possession of the Service that, in the opinion of the Commissioner, is relevant to the case, as soon as practicable after the belief is formed, but not later than six months before the presumptive release date of the inmate unless
(a)	the Commissioner formed the belief on the basis of
	(i)	behaviour by the inmate that occurred within those six months, or
	(ii)	information obtained within those six months; or
(b)	any of the sentences included in the term of imprisonment the inmate is then serving has been reduced or a conviction in respect of any such sentence has been quashed on appeal.
(4) Board's request for information - The Service shall, on the request of the Board, take all reasonable steps to provide the Board with any additional information that is relevant to a case referred pursuant to subsection (2) or (3).
(5) Cases referred to Chairman dealt with expeditiously - Where the case of an inmate is referred to the Chairman of the Board pursuant to subsection (3) during the six months immediately preceding the presumptive release date of the inmate, the Board shall,
(a)	if the case is referred to the Chairman more than four weeks prior to the presumptive release date, hold a hearing pursuant to subsection 21.4(2) before the presumptive release date;
(b)	if the case is referred to the Chairman within the four weeks immediately preceding the presumptive release date but more than three days prior thereto, and is
	(i)	a hearing may be held pursuant to subsection 21.4(2) before the presumptive release date, hold that hearing before that date, or
	(ii)	a hearing may not be held pursuant to subsection 21.4(2) before the presumptive release date, hold an interim hearing before that date; or
(c)	if the case is referred to the Chairman within the three days .immediately preceding the presumptive release date, hold an interim hearing within the three days after the day on which the Sir case is referred,
(6) Interim hearing - An interim hearing pursuant to subparagraph (5)(b)(ii) or paragraph (5)(c) shall be held in the manner prescribed by the regulations,
(7) Decision after interim hearing - On completion of an interim hearing held pursuant to subparagraph (5)(b)(ii) or paragraph (5)(c), where the Board is of the opinion that, on the basis of all the information provided to the Chairman of the Board pursuant to subsection (3) or to the Board pursuant to subsection (4), a sufficient case is made out to hold a hearing pursuant to subsection 21.4(2), the Board shall hold the hearing as soon as practicable but not later than four weeks after the case is referred to the Chairman of the Board pursuant to sub- section (3).
[RSC 1985 c34 (2nd Supp) s5]
Judicial Consideration -
S21.3
Cunningham v The Queen - Unreported, April 22, 1993, No. 22451 (SCC) (Butterworths No. 38449)
	- The 1986 amendments to the Parole Act which changed the conditions for release on mandatory supervision did not amount to a denial of the prisoner's liberty contrary to principles of fundamental justice under s7 of the Charter. The interests of the prisoner are safeguarded because he or she is entitled to a hearing and to legal representation. There are provisions to review the new detention in the future.
Neeposh v National Parole Board - Unreported, April 6, 1993, No. T-338-93 (FCTD) (Butterworths No. 38452)
	- The applicant applied by way of certiorari for an order that the Parole Board did not have the jurisdiction to conduct a detention review of her because the Case Management Officer had not expressed an opinion in writing that the criteria under s21.3(2)(a) (b) and (c) Parole Act had been met. The applicant submitted that since this had not been done, the matter could not go to the Parole Board unless it had been specifically referred by a "Commissioner". The court dismissed the application and held that the Parole Board did have jurisdiction to hear the detention review. Section 21.3(2) specifically refers to the "Service" forming an opinion with respect to criteria (a), (b) and (c). In this case the "Service" had formed an opinion as required under s21.3(2) because the Deputy Warden had convened a Detention Review Board which concluded on the basis of psychiatric reports that the applicant was likely to re-offend and that there should be a detention referral to the Parole Board Service" should not be read so narrowly as to limit the relevant holders of the opinion" to the two officers who happen to be members of the Case Management Team of an inmate.
Pierce v Commissioner of Corrections - Unreported, July 22, 1987, No. T-1456-87 (FCTD)
	- The intent of s15.3(2) is that the review itself and any referral must be carried out before the six-month deadline, i.e., six months before the individual's presumptive release date. Where the review is initiated after that deadline, a subsequent referral to the Board will be a nullity. The Correctional Service of Canada has no authority to commence a review after that deadline.
	In the circumstances, the review produced no majority opinion for referral to the Board. There was, however, a dissenting opinion from the institutional psychologist. The majority of the Case Management Team felt there were no reasonable grounds to believe that the inmate was likely to commit, before his sentence expired, an offence causing death or serious harm to another person within the meaning of s15.3(2)(c). The institutional psychologist took a different view and, after the first review, met with the inmate and filed a subsequent report. In that report, he indicated that the inmate had refused to meet and discuss matters with him prior to that last meeting. He, therefore, took the view that the information obtained in that last meeting was "new' information within the meaning of s15.3(3)(a)(ii). The Deputy Commissioner in the region reviewed this information and concluded that it was "new' information and recommended that the Commissioner make the referral under s15.3(3). The Commissioner made the referral. The balance of the Case Management Team took issue with the institutional psychologist's subsequent report and its classification as "new' information. The prisoner brought an application for certiorari to quash the decision of the Commissioner, taking the position that any decision to refer or not to refer after the six-month presumptive period was invalid and that the decision of the Commissioner was based on information that was not obtained within the six-month period, but was already existing prior to that time. The motion was dismissed. The court held that it was not for the court to substitute its opinion for that of the Commissioner and hold that the information leading to his belief that there should be a referral already existed before the six-month deadline. The court pointed out that it could interfere by way of certiorari if there was no evidence to support the Commissioner's conclusion the information was obtained only after the six-month stipulation. Here there was evidence in the form of the psychologist's report that the information he obtained was not obtained prior to the six month deadline. The Commissioner was entitled to consider this and other reports and apply his own mind to them to reach the belief he came to.
	In obiter, the court expressed some doubts as to the procedure taken in the case by the Service. While the procedure followed was not expressly forbidden or excluded by the legislation, it was not contemplated by the legislation. The court expressed the view that the procedure followed in this case should not be used as an alternative route to try and obtain a Commissioner's referral under s 15.3(3) (a)(ii).
Goessell v Correctional Service of Canada and National Parole Board - Unreported, January 4,1991, No. T-2987-90 (FCTD) (Butterworths No. 35159)
	- The applicant sought an order of prohibition to prevent the National Parole Board from proceeding with a hearing pursuant to s21.4 of the Parole Act and for an order of mandamus requiring the Correctional Service of Canada to release the applicant on his presumptive release date of March 2, 1991. In Bradford v Correctional Service of Canada (1988) 24 FCR 179 the FCTD held that before the Parole Board conducts an inquiry and a hearing in respect of a referral under what is now subs 21.3(2) it must convince itself that it has jurisdiction by satisfying itself:
	(1)   That the Service has formed the necessary opinion under subs 21.3(2);
	(2)   That on the basis of the material submitted with the referral, the conclusion of the Service was rational in the sense that a reasonable person with the same facts could have reached the same conclusion.
	Initial reviews as to whether a prisoner meets the criteria of s21.3(2) are carried out by his or her Case Management Team (CMT) consisting of a Case Management Officer -Institution (CMO-I) and a Case Management Officer - Community (CMO-C). In this instance the CMO-I and CMO-C came to different conclusions about whether the criteria were met. The CMO-l's recommendation was accepted by the Warden. The CMO-C's recommendation was varied by his superior, a decision approved by the District Director. The applicant contended that, where "those most intimately involved in the case" namely, the CMO-I and the CMO-C are in disagreement it is impossible for "the Service" to form "an opinion". The reference to "the Service" in subs 21.3(2) cannot be read so narrowly as to limit the relevant holders of the "opinion" to the two officers who happened to be members of the CMT of an inmate at a given time. Obviously, the reference to "the Service" in the subsection has a much broader meaning. Although for most practical purposes the opinion will in most instances be formed by those immediately involved with the inmate, where there is a disagreement that disagreement will have to be raised to a higher level and resolved by those having the responsibility of final decision making. There is nothing unreasonable in a referral to the Board being an institutional one based on the best information and best judgment available within the Correctional Service, such judgment not being confined to the opinions of the two Case Management Officers.
Barton v National Parole Board - Unreported, June 20,1990, No. T-1618-90 (FCTD) (Butterworths No. 34449)
	- The prisoner brought an application for an order of certiorari ordering that the National Parole Board had exceeded its jurisdiction by referring the prisoner for detention review under s21.3 of the Parole Act after the expiry of the six-month period prior to the prisoner's release date. In fact, the applicant's case was referred to the National Parole Board for review under s21.4 of the Act more than six months before the prisoner's presumptive release date. A more detailed progress summary report was later received by the Board for the purpose of the s21.4 hearing. The Court found that one cannot infer from the provision of such additional information that the applicant's case had not been referred pursuant to s21.3 together with all the information that, in the opinion of the Correctional Service, was relevant to the case. In fact, pursuant to subs 21.3(4) the Correctional Service had the obligation to provide the additional information requested by the Board. Furthermore, even assuming the referral was made later than required by the Act, the prisoner failed to show that any of his rights or freedoms as guaranteed by the Charter had been infringed or denied.
Ford v Commissioner of Corrections - [1965] 1 CCC 168, 43 CA 252 (SCC)
	- The Commissioner of Corrections referred the applicant's case to the National Parole Board for a detention hearing. The applicant argued that there was no new information which would merit a referral by the Commissioner. A psychiatric report had been completed after the 6-month time limit had passed, however, the applicant said the information was not new in the sense it was available prior to the limitation date. The court referred to fie Cunningham, unreported, August 2, 1989, No. 241 (Ont HC), where reference was made to the "abhorrent and draconian practice of 'gating' " and Pierce v Canada (Commissioner of Corrections) (1987) 13 FTR 218 (FCTD), where Mr. Justice Collier stated that the exceptional authority of the Commissioner to refer cases to the Board ought not be utilized as an alternative route to seeking detention hearings to the regular procedure set out in s21.3(2) of the Parole Act.
	Mr. Justice MacKay ruled that the psychiatric report obtained in the months prior to the inmate's presumptive release date, was a possible reasonable basis for the Commissioner forming his belief ...about the likelihood of further serious offences by Ford " The court said the Commissioner is entitled to refer an inmate for a detention if the new information that the Commissioner is relying on is (p13):
		..."new" in the sense that the content be unknown both to the Commissioner and to the Service for which he is responsible prior to the six month period; it should come into their possession for the first time during that period.
Prasad v National Parole Board - Unreported, November 27, 1991, No. T -2150-91 (FCTD) (Butterworths No. 36358)
	- The prisoner applied for prohibition to prevent the Board from considering material containing reports of criminal activities unsupported by a conviction at an upcoming detention hearing. He asserted that it would be a breach of the duty to act fairly to consider such material as well as a breach of ss7, 9 and 11 of the Charter.
	The applicant was 32 years old and was serving a seven-year sentence for sexual assault and robbery of an 86-year-old woman. He had been released on mandatory supervision but a few months later, was charged with assault and robbery of two prostitutes. Those charges were dropped. The robbery charge was withdrawn because the alleged victim did not show up for trial. The assault charge was withdrawn because the victim did not wish to give evidence. The applicant posted a $500.00 peace bond with undertakings not to have any contact with the complainant. His mandatory supervision had been suspended and at a post-suspension hearing, was revoked with no re-credit of remission. That decision was affirmed by the Appeal Division. When his new mandatory date was reached, he was referred for a detention review. He objected to the inclusion of certain documents referring to crimes and activities of which he was never convicted and, in particular, referring to the charges that were dropped. He concedes that previous convictions constitute .reliable information. but says that information with regards to offences for which a conviction was never entered do not.
	The court dismissed the application. The court distinguished Okeynan v Watrfen of Prince Alben Penitentiary (1988), 20 FTA 270 (FCTD) as the information in the Progress Summary report in that case was not admissible because it was not specific and would not have given the applicant there sufficient information so that he could adequately prepare himself. It was not suggested that the information was unreliable. Here, the information was specific enough to enable the applicant to prepare his case and to allow its use would not put the fairness of the process into question. The Board is not determining guilt or innocence at a detention hearing. The issue is whether or not there are grounds upon which the Board could determine that the applicant, if released prior to the expiry of his sentence, would pose an undue risk to the public. Information with respect to the charges was relevant insofar as it was indicative of the applicant's lifestyle and associations. The Board also distinguished Cardinal v Canada (National Parole Board) (1990) 46 Admin LA 45; 61 CCC 185 holding that it was satisfied that the applicant was aware of the Board's concerns when he was given a chance to make submissions at the post-suspension hearing and, therefore, his s7 Charter rights had not been violated.
Ladouceur v National Parole Board - Unreported, June 28, 1991, No. T -1582-91 (FCTD)
	- The prisoner's eligibility for release on mandatory supervision was approaching when new information about the prisoner caused the Correctional Service to forward the file to the Commissioner of Corrections for a Commissioner's referral under s21.3(3) of the Parole Act. The prisoner had been convicted of incest and the new information was to the effect that the applicant had formed a relationship with a 13-year-old female many years earlier. The prisoner argued that because the psychologist's report recommended supervised release and the report referred to a prior relationship for which the prisoner had not been charged it was not reasonable for the Commissioner to form as he did the belief which is required by subsection 21.3 of the Parole Act The Court found that there was not inconsistency between the psychologist's report and the reasonable basis for the Commissioner's belief because the Board had the authority to impose a condition pursuant to s21.4(4)(b), requiring the prisoner to reside in a community-based residential facility. The Commissioner's referral in this instance constitutes a decision which was taken by a competent authority who acted in good faith and in accordance with the requirements of the Parole Act and its Regulations. The prisoner cannot complain of any procedural unfairness. The application was dismissed. For other grounds see annotation under s21.4.
Richter v National Parole Board - Unreported, January 6, 1992, No. T-2040-91, Calgary (FCTD), (Butterworths No. 36592)
	- Pursuant to s21.3(2), Board conducted detention review of applicant who was eligible for mandatory review. Board ordered continued detention pursuant to s21.4. Applicant applied for cel1iorari to quash the order. He argued that: 1) he had received inadequate notice of case to be met; 2) Board's requirement that he take psychological assessment violated his s7 rights under the Charter; and, 3) Board's conclusion that he was likely to commit an offence causing death or serious bodily harm was unsupported by evidence. Court dismissed the application. The applicant had been represented by counsel and received adequate notice of case. He had history of violence but refused to participate in counselling programs. His refusal to subject himself to an assessment was only one factor taken into account by the Board. His record dated from 1963; from 1972 onward it included offences for violence. There was abundant evidence to support Board's conclusion about his future propensity to commit violent offences.
21.4 (1) Review by Board - The Board shall, at the time and in the manner prescribed by the regulations, review the case of every inmate referred to it by the Service pursuant to subsection 21.3(2) or referred to the Chairman of the Board pursuant to subsection 21.3(3).
(2) Hearing to be held - Notwithstanding section 17, in reviewing a case pursuant to subsection (1), the Board shall
(a)	cause to be conducted all such inquiries in connection therewith as it considers necessary; and
(b)	Subject to subsection 21.3(6) and (7), old a hearing at the time and in the manner prescribed by the regulations.
(3) Confinement pending hearing - Where the case of an inmate is referred to the Chairman of the Board during the six months immediately preceding the presumptive release date of the inmate, the inmate is not entitled to be released from imprisonment prior to the rendering of the decision of the Board in connection therewith.
(4) Direction by the Board - On completion of the hearing and review of the case of an inmate pursuant to this section, where the Board is satisfied that the inmate is likely to commit, prior to the expiration according to law of the sentence the inmate is then serving, an offence causing the death of or serious harm to another person, the Board may, by order,
(a)	direct that the inmate shall not be released from imprisonment prior to the expiration according to law of the sentence the inmate is serving at the time the order is made, or
(b)	impose, subject to subsection (6), as one of the conditions of the release subject to mandatory supervision of the inmate, residence in a community-based residential facility,
and, where the Board is not so satisfied, the Board shall make an order declaring whether, at the time the case was referred to the Board, the inmate was serving a term of imprisonment that included a sentence imposed in respect of an offence mentioned in the schedule that had been prosecuted by indictment and whether, in its opinion, the commission of the offence caused the death of or serious harm to another person.
(5) Factors to be taken into consideration - For the purpose of determining the order to be made in respect of an inmate pursuant to subsection (4), the Board shall take into consideration any factor that is relevant to the case of the inmate and, without limiting the generality of the foregoing,
(a)	a pattern of persistent violent behaviour established on the basis of any evidence and, in particular,
	(i)	the number of offences committed by the inmate causing physical or psychological harm,
	(ii)	the seriousness of the offence for which the sentence imposed is then being served,
	(iii)	reliable information demonstrating that the inmate has had difficulties controlling violent impulses to the point of endangering the safety of any other person,
	(iv)	the use of weapons in the commission of any offence by the inmate,
	(v)	explicit threats of violence,
	(vi)	behaviour of a brutal nature associated with the commission of any offence by the inmate, and
	(vii)	a substantial degree of indifference on the part of the inmate as to the reasonably foreseeable consequences, to other persons, of the behaviour of the inmate;
(b)	psychiatric or psychological evidence that the physical or mental illness or disorder of the inmate is of such a nature that the inmate is likely to commit, prior to the expiration according to law of the sentence the inmate is then serving, an offence causing the death of or serious harm to another person;
(c)	reliable information the existence of which compels reaching the conclusion that the inmate is planning to commit, prior to the expiration according to law of the sentence the inmate is then serving, an offence causing the death of or serious harm to another person; and
(d)	the availability of supervision programs that would offer adequate protection to the public from the risk the inmate might otherwise present until the expiration according to law of the sentence the inmate is then serving.
Ex parte Lambert - [1965] 1 CCC 168, 43 CA 252 (SCC)
	- There is no contradiction between this section (then s11) and s20 (then s16) of the Parole Act.
(6) Consent of Commissioner - The Commissioner or a person designated by the Commissioner must consent in writing to the residence in a penitentiary of an inmate in respect of whom an order is made pursuant to paragraph (4)(b).
(7) Decision and reasons of Board given to inmate - The Board shall, after completing its review of the case of an inmate pursuant to this section, cause to be given to the inmate a copy of its decision and, where applicable, a copy of any order made pursuant to paragraph (4)(a) or (b) and of any other conditions imposed on the inmate, together with the reasons for the decision of the Board
(a)	where the case was referred to the Board not later than six months before the presumptive release date of the inmate, at least two months before that presumptive release date; or
(b)	where the case was referred to the Board during the six months immediately preceding the presumptive release date of the inmate, as soon as practicable after the completion of the review.
(8) Ineligibility for parole - An inmate who is in custody pursuant to an order made under paragraph (4)(a) is not eligible for parole.
[RS 1985 c34 (2nd Supp) s5]
Judicial Consideration -
Hopley v Warden of Agassiz Mountain Prison et al - Unreported, February 18, 1987, No. CC870057, Vancouver (BCSC)
	- A decision under this section by the Board detaining the applicant was set aside on habeas corpus and referred back to the Board with the direction that it reconsider the matter in accordance with the principles of natural justice. The Board had failed to comply with the requirements of natural justice by only showing the material on which it relied to the applicant without leaving him with copies of the material. The court said that if the applicant had difficulty understanding and retaining the information contained in the reports, the Board had an obligation to make sure he had a timely opportunity to consult counsel and otherwise prepare himself to deal with the information at the hearing. A failure to comply with natural justice does not automatically mean that the detention is unlawful and, therefore, the proper course is to refer the matter back to the Board for reconsideration in accordance with the rules of natural justice.
Ladouceur v National Parole Board - Unreported, June 28,1991, No.T-1582-91 (FCTD)
	- The prisoner, whose eligibility for release on mandatory supervision was approaching, sought to prevent a detention hearing from taking place arguing that the time in which such a hearing was to be held elapsed. New information about the prisoner caused the Correctional Service to forward the file to the Commissioner of Corrections for a Commissioner's referral under s21.3(3) of the Parole Act. The matter was originally to have been heard by the National Parole Board on June 12, 1991 but was rescheduled at the request of the prisoner's assistant to July 3, 1991.
	The applicant argued that because the Commissioner's referral was made on May 13, 1991, the National Parole Board was required to conduct a hearing not later than 4 weeks after the case had been referred to the Board or to its Chairman, and those four weeks elapsed on June 11, 1991. However, the judge, having reviewed Parole Regulation 16.1(2) and ss21.4(1) and (2) of the Parole Act, ruled that, although the time frames established within the Parole Act and its Regulations are imperative, the proper interpretation was that since the obligation is imposed upon the Board to do something within a certain time limit, such time limit ought not to commence before the latter has been made aware of the Commissioner's referral. Since the Board only learned of the referral on May 15, 1991, the four-week period (calculated in accordance with the Interpretation Act) commenced May 16,1991 and ended June 12,1991. Had the applicant not requested an adjournment, the hearing would have been held within the required time. The application was dismissed.
Wesley v National Parole Board - Unreported, December 9, 1986, No. T-2648-86 (FCTD)
	- A detention order under these sections was quashed on certiorari by consent because the Board apparently did not have jurisdiction or exceeded its jurisdiction in that the prisoner did not meet the referral criteria where one of the three criteria was not established so as to confer jurisdiction on the Board and was completely unsupported by any factual information.
Niessen v National Parole Board - Unreported, February 2, 1988, No. T-2717-87 (FCTD)
	- The applicant sought certiorari to quash the decision of the National Parole Board ordering his detention pursuant to s15.4(4) of the Parole Act. At the commencement of his parole detention hearing, counsel for the applicant had sought leave to cross-examine the Case Management Team officers who had made the referral to the Board to determine whether or not reasonable grounds existed for the referral. The prisoner had been assessed by a psychiatrist and a psychologist, both of whom had given favourable reports. At the conclusion of the hearing, the Board, having retired to consider it's decision, returned and in it's reasons indicated that it was not fully satisfied with the psychiatric and psychological reports and ordered the prisoner's detention. On the application, counsel argued that there were no reasonable grounds for the referral, that the decision was patently unreasonable on the evidence and that it was procedurally unfair for the Board not to indicate any problems it might be having with the reports that were obtained at the Board's request so as to enable the prisoner or his counsel to meet those objections during the course of the hearing instead of simply being informed as to the Board's lack of satisfaction with reports in the course of the decision. The application was dismissed. There is no obligation on the Board before entering upon its inquiry to inquire whether the service has reasonable grounds to refer the matter to it. It would be manifestly unreasonable to require the Board to, in effect, conduct two inquiries when the same considerations form the subject matter of both decisions. The applicant had no right to insist that any members of the Case Management Team be cross-examined at the hearing before the Board to determine whether the case should have been referred. The proceeding before the Board is an administrative one and not one which is required by law to be made on a judicial or quasi-judicial basis and there is, at law, no recognized vested absolute to cross-examine any witness on any such proceedings.
	There were ample objective grounds to justify the Board's decision. The grounds of any such decision must be based on objective considerations but they need not be such that they can justify one conclusion only. They need not be compelling in nature, as long as they form a reasonable basis for the decision, even though another result might also have been justified. If the decision is not patently wrong in the sense that it cannot reasonably be based on the facts, it should not be interfered with. There is no obligation on the Board to accept any expert evidence. Where there is a firm and unequivocal opinion from an expert whom the Board has consulted, the Board should satisfy itself that there is some good reason or some valid consideration or grounds for completely rejecting it before doing so. Such an opinion might be based on some incorrect, unproven or contradictory factual assumptions or findings or other grounds might exist of which the expert might not have been aware of which might be outside of his field of expertise. On the facts here, the court held that the opinions were not conclusive and there existed a sufficient degree of ambivalence in them so the Board's decision was justifiable.
	No obligation exists at law or by reason of any principle of procedural fairness to advise counsel during the hearing that the Board is not satisfied with the reports. Before the reports had been carefully considered in the light of other evidence and the Board had had the opportunity of weighing all the evidence following the hearing, it might well not have known what it's final decision would be or what weight would finally be attributed to what appeared to be the ultimate conclusions of the report. Even If, when the reports were actually presented and read, the members of the Board had, In fact, at that time reached a conclusion that the advice would be rejected In whole or In part, there still would have been no procedural obligation to so advise the applicant at that time any more than there would be for a trial judge to do so before judgment, even in a criminal case. The applicant was fully aware of the reports and of all the other evidence and chose to not call any psychiatric or psychological ex- pert on his own behalf.
Goessell v Correctional Service of Canada and National Parole Board - Unreported, January 4,1991, No. T-2987-90 (FCTD) (Butterworths No. 35159)
	- See annotation under Parole Act s21.3.
Okeynsn v Warden of Prince Albert Penitentiary - Unreported, March 25, 1988, No. T -261-88 (FCTD)
	- In quashing on certiorari a National Parole Board detention order on the grounds that the applicant was not given sufficient, specific details of the allegations contained In written reports to enable him to defend himself, Strayer, J reaffirmed earlier decisions of the court (Latham and Cadieux) in holding that a hearing by the National Parole Board which can affect the amount of time a convicted person actually serves In prison affects his "liberty" and thus It must be conducted In accordance with the "principles of fundamental justice" as required by s7 of the Canadian Charter of Rights and Freedoms.
	In addition, the court doubted that the particulars provided in the written reports were sufficient to even constitute a "summary" in writing of the "relevant Information" to be considered In the review by the Board as required by s17 of the Regulations.
	Section 17(2) of the Regulations specifically requires that for hearing under s15.4 of the Act, such Information is to be provided by the Board "in writing". The refusal by the applicant to an oral briefing or discussion on the matters prior to the hearing was no answer and could not be considered to provide the applicant with such notice as to comply with the constitutional requirements of fairness.
	The information complained of here was contained in a "Progress Summary" which made a number of allegations without providing specifics. It was suggested that the applicant had been transferred to a psychiatric centre and then returned to a maximum security Institution as a result of threatening staff. It suggested he was Involved In numerous internal disciplinary offences and Indicated strong suspicions of his Involvement in other Inmate stabbings, including one fatal stabbing. It said he verbally threatened staff and other inmates.
	The court held that previous convictions either Inside or outside prison could be taken Into account by the Board and constitutes such "reliable Information" which the Board is required to take into consideration pursuant to subpara15.4(4.1)(a)(iii). The court expressed the view that this term would also cover "police reports filed In connection with offences of which he was subsequently convicted outside of prison".
	In the court's view the statements from the "Progress Summary" went beyond such matters and referred to conduct In prison for which, as far as could be ascertained, the applicant had never been convicted. The Information was obviously of a kind that would be quite influential to the decision the Board was called upon to make. It was not sufficiently specific and was lacking In sufficient detail to enable the applicant to defend himself.
	The failure of the Board to record the hearing as required by s16.2 of the Parole Regulations did not automatically nullify the decision of the Board but was quite relevant to the exercise of judicial review of such a decision because the absence of a record makes it difficult for the court to determine whether or not the application had a fair hearing. A failure to provide the information necessary to the exercise of judicial review may, particularly where Charter s7 rights are involved, further justify judicial Intervention under s24 of the Charter. A new hearing was ordered.
	The court exercised its discretion in favour of granting certiorari because of the importance of the interests affected, the inadequacy of the record of the Board hearing and the constitutional issues involved. The fact that the applicant had appealed to the Parole Board Appeal Division unsuccessfully and had not raised the fairness issue on that appeal, only went to the issue of the exercise of judicial discretion.
Tatham v National Parole Board - (1990) 77 CR (3d) 209 (BCSC)
	- The National Parole Board refused to give the applicant even the "gist" of the new information which they were relying on at the applicant's detention hearing. The Board said they could not release this information due to Its extreme sensitivity. Following Ross v Kent Institution (1987) 34 CCC (3d) 452 (BCCA) Macdonell quashed the decision of the detention hearing, holding that It was contrary to fundamental justice. To deprive the applicant: "...of his liberty on such private or secret Information without his having even the barest outline or gist of what I the case is against him Is a clear abuse of his right to liberty." (p214)
Desjardins v National Parole Board - Unreported, October 5, 1989, No. T-1555-89 (FCTD)
	- The applicant appealed the result of a detention hearing. Two of the grounds of appeal raised were that:
	(1)   the transcript of the hearing was Incomplete; and
	(2)   the Board should not have admitted Into evidence photos showing parts of the body of the applicant's victims.
	On the first ground the court was not satisfied that the gap In the transcript created a ground of review. Pinard J, referred to Hayes v The Queen 48 CCC (3d) 161 (SCC) where Madame Justice L'Heureux-Dube stated at p165:
		On the first ground the court was not satisfied that the gap In the transcript created a ground of review. Pinard J, referred to Hayes v The Queen 48 CCC (3d) 161 (SCC) where Madame Justice L'Heureux-Dube stated at p165:
	On the second ground the applicant argued that the pictures of the victims' body parts were irrelevant to the subject of the hearing, and also inadmissible due to the prejudicial effect they would have on the Board. The court referred to the test set out In The Queen v Wray [1971] SCR 272 (SCC), which requires the court to balance the probative value of the evidence against Its prejudicial effect.
	In ruling that the photos were admissible the court provided little analysis of the role that evidence, properly led at trial, should have in detention hearings. Nor was there any analysis of how the competing Interests described In Wray should be balanced in detention hearings. Nor did the court attempt to provide guidelines for the sort of Information which the Parole Board may properly rely on In detention hearings.
Editorial Note - Such an unsophisticated analysis by the court will surely raise issues in future. One obvious issue likely to arise is the role of victim impact statements in detention hearings. If graphic photos of serious injuries arising from crimes are admissible, it would appear to be only a short step to admit victim statements. The concern with the admission of such evidence is that it detracts from the focus of the inquiry by unduly emphasizing the original crime, as opposed to determining the likelihood of the offender to re-offend. This is at odds with the purpose of detention hearings and the Board should not be retrying the inmate on his original crime.
It is submitted that the Board should exercise caution in choosing what evidence it will admit at detention hearings.
Richter v National Parole Board - Unreported, January 6, 1992, No. T -2040-91 (FCTD) (Butterworths No. 36592)
	- The prisoner sought certiorari to quash a decision detaining him, pursuant to s21.4 of the Parole Act. The prisoner was 42 years old and had a criminal record dating back to 1963. The record consisted primarily of property offences until 1972. There was then a six-year gap. From 1980 on, the prisoner had been convicted of a series of offences relating to domestic violence. He was serving a sentence for aggravated assault to which he had pled guilty. While in prison, he was a model inmate. However, day parole was denied and so was full parole. When he reached eligibility for mandatory supervision, he was referred to the Board for detention. He was detained and that decision was affirmed by the Appeal Division. Throughout, it was the opinion of the Board and Correctional Service officers that the individual exhibited a pat- tern of resorting to violence and that the factors that led him to this behaviour had not been identified and addressed and he remained untreated.
	The prisoner claimed that he had received inadequate notice of the case to be met with the result that he was unable to prepare and present it properly. However, he was represented by counsel at the hearing and every effort was made to ensure that complete disclosure was made. There was ample evidence to substantiate the Board's conclusions. The court considered criminal convictions, police reports and sentencing submissions by Crown Counsel to be more reliable information than a simple uncorroborated statement of the individual that he had dealt with his problems. The individual refused counselling and assessment programs. The materials indicated that the individual had problems and in assessing risk, the Board is bound to consider whether or not those problems still exist and a professional assessment would have assisted the Board in reaching that decision. The counselling and assessment was not a pre-condition to release. The individual was given ample opportunity to prepare and adduce evidence that he had dealt with his problems and did not pose a risk to society. He chose not to participate and, consequently, the Board was unable to conclude that he was not still a risk.
Kenny v National Parole Board, et al - Unreported, June 14, 1991, No.T-1256-91 (FCTD)
	- The prisoner sought a writ of certiorari quashing the National Parole Board's decision to refuse him release on mandatory supervision at a hearing pursuant to s21.4 of the Parole Act. In addition, or as an alternative, he sought such remedy as the Court considered appropriate and just in the circumstances pursuant to s24(1) of the Canadian Charter of Rights and Freedoms.
	Subject to the provisions of the Parole Act relating to detention, the applicant became entitled to release on mandatory supervision on August 12, 1990. On July 18, 1990, following a hearing the same day, the National Parole Board ordered that the applicant not be released pursuant to s21.4(4)(a) of the Parole Act. The Court found that, while a person retains the right not to be deprived of the very limited liberty resulting from Parole except in accordance with the principles of fundamental justice, on the evidence in this case, the National Parole Board that adjudicated upon the applicant's rights acted fairly, in good faith, without bias in accordance with the principles of natural justice, and in accordance with the requirements of the Act. Nor was the Court satisfied that the Board's decision was so unreasonable that it ought to be quashed.
	For other grounds see annotation under Parole Regulation 22(1).
21.5 (1) Yearly review - The Board shall review the case of every inmate who is subject to an order made pursuant to paragraph 21.4(4)(a) forthwith after the expiration of one year following the day on which the order was made and every year thereafter during which the inmate is subject to the order.
(2) Confirmation, revocation or variance of order for detention - The Board may, on the completion of a yearly review of the case of an inmate pursuant to subsection (1), confirm or revoke the order made pursuant to paragraph 21.4(4)(a) in respect of the inmate or substitute therefore an order pursuant to paragraph 21.4(4)(b)
(3) Applicable provisions - Subsections 21.4(2), (5) and (6) apply, with such modifications as the circumstances require, in respect of a yearly review pursuant to subsection (1).
(4) Idem - Subsection 21.4(7) applies, with such modifications as the circumstances require, in respect of a yearly review pursuant to subsection (1) as if it were a case to which paragraph 21.4(7)(b) would apply.
(5) Power to revoke detention order - The Board may, at any time, revoke an order made pursuant to paragraph 21.4(4)(a) or substitute therefore an order made pursuant to paragraph 21.4(4)(b).
(6) Deemed recredit of remission for release - Where an order made pursuant to paragraph 21.4(4)(a) is revoked or an order made pursuant to paragraph 21.4(4)(b) is substituted by the Board pursuant to this section, the remission of that portion of the sentence the inmate is serving at the time of the revocation or substitution that
(a)	was forfeited pursuant to subsection 25(6) of the Penitentiary Act, and
(b)	entitles the inmate to be released subject to mandatory supervision until the expiration of the sentence according to law shall be deemed to be recredited by the Board.
[RS 1985 c34 (2nd Supp) s5]
21.6 (1) Regulations - The Governor in Council may make regulations
(a)	prescribing the time when and the manner in which a review of the case of an inmate pursuant to section 21.4 or 21.5 and the hearing pursuant to subparagraph 21.3(5)(b)(ii), paragraph 21.3(5)(c) or subsection 21.4(2) is to take place;
(b)	prescribing the minimum number of members of the Board who must be present during and vote in respect of a hearing held pursuant to subparagraph 21.3(5)(b)(ii) or paragraph 21.3(5)(c) or vote in respect of a case reviewed pursuant to section 21.4 or 21.5 and the minimum number of affirmative votes required in the making of a decision pursuant to subsection 21.3(7) or section 21.4 or 21.5;
(c)	prescribing the information, and the form thereof, to be supplied or made available to an inmate or any other person by the Board before the commencement of or during a hearing held pursuant to subparagraph 21.3(5)(b)(ii), paragraph 21.3(5)(c) or subsection 21.4(2) and the time within which such information is to be supplied;
(d)	prescribing the information or classes thereof that may be withheld from an inmate or other person before the commencement of or during a hearing held pursuant to subparagraph 21.3(5)(b)(ii), paragraph 21.3(5)(c) or subsection 21.4(2) and the circumstances in which the Board may withhold such information;
(e)	prescribing that an inmate is entitled to assistance at a hearing held by the Board pursuant to subparagraph 21.3(5)(b)(ii), paragraph 21.3(5)(c) or subsection 21.4(2) and the kind and extent of such assistance, and the persons or class of persons who may provide such assistance;
(f)	prescribing the type of record to be kept by the Board of the hearing held pursuant to subparagraph 21.3(5)(b)(i i), paragraph 21.3(5)(c) or subsection 21.4(2) or any other proceedings held in respect of a review of the case of an inmate pursuant to section 21.4 or 21.5; and
(g)	prescribing the time when and the manner in which an inmate may apply to the Board for a re-examination of the decision made in respect of the review of the case of the inmate pursuant to section 21.4 or 21.5, the manner in which the re-examination will be conducted and the time when and the manner in which the inmate will be informed of the decision rendered in connection therewith.
(2) Designation - The Governor in Council may, by order,
(a)	designate any penitentiary within the meaning of the Penitentiary Act for the purpose of the definition "community-based residential facility" in section 21.2; and
(b)	amend the schedule by adding thereto or deleting therefrom an offence under any Act of Parliament.
[RS 1985 c34 (2nd Supp) s5]
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