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PROCEDURE ON TERMINATION
OR REVOCATION OF PAROLE

23. Apprehension - Notwithstanding section 19, when any parole is terminated or revoked, the Board or any person designated by the Chairman may, by a warrant in writing, authorize the apprehension of the paroled inmate and the recommitment of the paroled inmate to custody as provided in this Act and, until the recommitment, the paroled inmate is deemed not to be continuing to serve the term of imprisonment.
[RSC 1970 cP-2 s18; 1976-77 c53 s30; AS 1985 c35 (2nd Supp) s12]
 
Judicial Consideration -
 
Ex parte Thompson - (1975),25 CCC (2d) 228 (NSSC)
  - The procedure set out in s18(2) does not infringe the provisions of s1 ((a) and 2(a) of the Canadian Bill of Rights. There is not requirement in the Parole Act that notice be given to the parolee if I before he is brought before the magistrate under this section.
 
Ex parte Hanna - (1975),25 CCC (2d) 228 (NSSC)
  - There is no need for the Parole Board to seek a warrant of "recommittal" under s18 if a warrant under s16 has been issued suspending mandatory supervision, and a subsequent decision to revoke has been made. The above mentioned steps effectively constitute the "recommitment" required by s20(1), with respect to revocation of mandatory supervision.
 
Mitchell v The Queen - [1976] 2 SCR 570, 6 NR 389,1 WWR 577, 24 CCC (2d) 241, 61 DLR , (3d) 77
  - The provisions of s2(c)(i) of the Canadian Bill of Rights requiring that a 1 person be "informed promptly of the reason for his arrest or detention" do not f apply to the revocation of parole and in any event, the provisions of that section are met if an inmate is told his parole has been suspended or revoked without being told the reasons for the suspension or revocation.
 
Skitt v Solicitor General of Canada et al - [1976] 1 FC 556. 29 CCC (2) 392 (FCTD)
  - This section applies to day parole.
 
Re Mezei - Unreported, April 13, 1978, No. CC 78028, Vancouver (SC)
  - This section, which was repealed on October 15. 1977, still applies in any case where mandatory supervision was forfeited before that date even though the warrant of apprehension under s 18(1) was issued after that date and the parolee apprehended after that date and mandamus may issue to compel the magistrate to exercise jurisdiction under this section. Further, a judge or magistrate acting pursuant to this section is not acting as a persona designata, and therefore the proper court of review is the provincial Supreme Court as opposed to the Federal Court.
 
Pearce v Warden of the Manitoba Penitentiary - [1966] 3 CCC 326, 54 WWR 720, 55 DLR (2d) 619 (Man CA) affirmed on appeal [1966] 3 CCC 339n, 55 DLR (2d) 631n, 57 WWR 127n
  - If the warrant issued by the magistrate under s14 states that the prisoner was brought before the magistrate then there is a presumption that this statement is true and more than a mere suspicion must be raised to rebut that presumption.
 
R v Gardner; ex parte Hamilton - [1970] 2 CCC 165 (Ont HC)
  - Under s14 of the Parole Act, the judge's jurisdiction is, upon the parolee appearing before him, to make out a warrant under his hand and seal for the recommitment of the inmate "as provided in this Act", namely, in accordance with s16(1) (now s20). The judge has no authority to stipulate the time to be served which is governed by statute and is a matter of calculation by the penitentiary authorities. A warrant stipulating the time to be served is not invalid but that portion doing so is merely surplusage. Once the warrant is issued the judge's powers are exhausted and he has no jurisdiction to issue a second warrant.
 
24. (1) Warrants for apprehension - A warrant issued under subsection 16(3) or (4) or section 22 or 23 shall be executed by any peace officer to whom it is given in any part of Canada and has the same force and effect in all parts of Canada as if it had been originally issued or subsequently endorsed by a provincial court judge or other lawful authority having jurisdiction in the place where it is executed.
    (2) Power of arrest without warrant - Where a peace officer believes on reasonable grounds that a warrant issued under subsection 16(3) or (4) or section 22 or 23 is in force in respect of an inmate, the peace officer may arrest and remand the inmate in custody.
    (3) Inmate to be brought before designated person - Where an inmate is arrested pursuant to subsection (2) and remanded in custody, the peace officer making the arrest shall, within twenty-four hours after the arrest, cause the inmate to be brought before a person designated by the Chairman of the Board.
    (4) Release or remand of inmate - Where an inmate is brought pursuant to subsection (3) before a person designated by the Chairman of the Board, that person
 (a)
 if that person is not satisfied that there are reasonable grounds to believe that the inmate is the inmate in respect of whom the warrant referred to in subsection (2) was issued, shall release the inmate; or
 (b)
 if that person is satisfied that there are reasonable grounds to believe that the inmate is the inmate in respect of whom the warrant referred to in subsection (2) was issued, may remand the inmate in custody to await execution of the warrant, but if norant for the inmate's arrest is executed within a period of six days I after the time the inmate is remanded to such custody, the person in whose custody the inmate then is shall release him.
[RSC 1970 cP-2 s19; AS 1985 c34 (2nd Supp) ss6, 13]
 
25. (1) Place of recommittal - On revocation of an inmate's parole, the Inmate shall be recommitted to the place of confinement from which he was allowed to go and remain at large at the time parole was granted or to the corresponding place of confinement for the territorial division within which the inmate was apprehended.
    (2) Effect of revocation of parole - Subject to subsection (3) and section 26.1 of the Penitentiary Act, where any parole is revoked, the paroled inmate shall, whether the inmate was sentenced or granted parole before or after the coming into force of this subsection, serve the portion of the term of imprisonment that remained unexpired at the time parole was granted, including any statutory and earned remission, less
 (a)
 any time spent on parole after October 14, 1977;
 (b)
 any time during which the parole was suspended and the inmate was in custody;
 (c)
 any remission earned after October 14, 1977 and applicable to a period during which the parole was suspended and the inmate was in custody; and
 (d)
 any earned remission that stood to the credit of the inmate on October 15, 1977.
    (3) Recrediting remission - Subject to the regulations and subsection 25(7) and section 26.1 of the Penitentiary Act, the Board or a provincial parole board may recredit the whole or any part of the statutory and earned remission that
 (a)
 stood to the credit of an inmate at the time parole was granted; and
 (b)
 in the case of a revocation of day parole, the inmate earned while on that day parole.
[RSC 1970 cP-2 s20; 1976-77 c53 s31; AS 1985 c34 (2nd Supp) s7]
 
Judicial Consideration -
 
Latham v Solicitor General of Canada et al - (1984), 12 CCC (3d) 9 (FCTD)
  - Section 7 of the Charter was intended to guarantee only procedural justice or fairness and does not contain substantive content and, consequently, it could not be argued that s20 I of the Parole Act in itself was contrary to fundamental justice and therefore s7 of the Charter:
 
Maxie v National Parole Board - (1985) 47 CR (3d) 22 (FCTD)
  - This section of the Parole Act is endowed with a rational purpose with consequences wholly proportional to a prisoner's misdeed, namely, the requirement that he serve out the fit sentence traditionally pronounced in the event of a breach of a term or condition of parole or mandatory supervision and in the event of a revocation. The legislative policy is to rehabilitate the prisoner gradually to control his behaviour and deter him from committing new crimes with the threat of revocation. That policy is quite rational, proportional and is not one of arbitrary imprisonment and therefore these statutory provisions do not conflict with s9 of the Chatter, nor was the individual prisoner in the circumstance of his case, subjected to arbitrary detention or imprisonment by virtue of the loss of remission that ensued. Furthermore, s7 of the Charter did not require the court to override Parliaments intention in enacting this section, nor was there any evidence that the prisoner's qualified liberty was denied or infringed, except in accordance with the principles of fundamental justice. Furthermore, the limits prescribed by the Parole Acton a parolee's qualified liberty are demonstrably justified in a free and democratic society in accordance with s1 of the Chatter.
 
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 s20 and the consequent loss of remission on revocation does not offend s7 or s9 of the Charter and was within the jurisdiction of the Board.
 
Re Torrie - Unreported, September 6, 1983 (Ont HC)
  - The applicant was serving a provincial sentence in New Brunswick and was then released on day parole. He failed to abide by a condition of that day parole that he remain in New Brunswick and was later arrested in Ontario and his day parole revoked. The warrant pursuant to s20(1) directed that he be delivered to the keeper of a provincial institution in Ontario to complete the remanent of his sentence. He sought habeas corpus with certiorari in aid or in the alternative mandamus to compel the authorities to transport him to a facility in New Brunswick. It was argued on his behalf that 520 is ambiguous when read in relation to s659(3) of the Code which requires a sentence of imprisonment of less than two years to be discharged in the province of conviction. The court held that s20(1) does not become ambiguous when read with s659(3) of the Code as that latter section states a general rule which may be derogated from by a specific rule such as s20(1) which applies only to parole revocation. The converse that s659 is a specific rule in relation to provincial correctional sentences and s20 a general rule in relation to parole is not correct. Section 20(1) was designed to give the appropriate authority the choice of where the prisoner is to discharge the sentence. The choice is either the original place of confinement or in the territorial division where he is apprehended. Territorial division in the federal statute includes territorial divisions in all provinces so as to include the interprovincial absconder.
 
Re Hipke and The Queen - (1985) 20 CCC (3d) 378 (Ont HC)
  - A prisoner who served a sentence in a foreign country and has received a credit for "gain time" on that sentence and then transfers to Canada under the Transfer of Offenders Act is by virtue of s11 of that latter Act entitled to a credit against his sentence to be completed in Canada and that Act only provides for forfeiture of such a credit for a disciplinary offence and does not provide for forfeiture upon revocation of parole. The words "statutory or earned remission" in this section are ambiguous and do not expressly include foreign "gain time' and consequently, this section was interpreted so as to not allow the forfeiture of foreign "gain time". See also annotation under s11 of the Transfer of Offenders Act.
 
McClarty v National Parole Board - (1990) 10 WCB (2d) 491 (FCA); aff'g (1989) 5 WCB (2d) 417 (FCTD)
  - Time served in the United States, for an offence committed while on mandatory supervision, does not become integrated with outstanding unserved Canadian sentences when the inmate is returned to Canada. Time spent in custody in a U.S. jail is not time "in custody" for the purposes of s25(2) (b) of the Parole Act. (See Dozois v The Queen (1981) 61 CCC (2d) 171 (Ont CA); Leschenko v AG Canada (1982) 1 CCC (3d) 522 (FCA); Morley v The Queen (1981) 61 CCC (2d) 190 (Man CA).
      Time served in the United States, for an offence committed while on mandatory supervision, does not become integrated with outstanding unserved Canadian sentences when the inmate is returned to Canada. Time spent in custody in a U.S. jail is not time "in custody" for the purposes of s25(2) (b) of the Parole Act. (See Dozois v The Queen (1981) 61 CCC (2d) 171 (Ont CA); Leschenko v AG Canada (1982) 1 CCC (3d) 522 (FCA); Morley v The Queen (1981) 61 CCC (2d) 190 (Man CA).
 
Jackson v The Queen - (1979), 44 CCC (2d) 65 (SCC)
  - This section is applicable to an inmate on day parole. Having regard to the abolition of forfeiture of parole (s17) and its replacement by simple revocation, the reference to "recommitment" in s20(1) taken in conjunction with s20(2) does not constitute such uncertainty that ambiguities or doubts of substance arise in the construction and application of the statute as would deprive the Parole Board of any power to revoke day parole. The Board is free to revoke or terminate day parole.
 
Harris v The Queen - Unreported, June 13, 1986, No. T -936-86 (FCTD)
  - By virtue of s15(2) of the Parole Act, s20(2) is applicable to a person on mandatory supervision. The phrase "any remission earned after the coming into force of this subsection and applicable to a period during which his parole was suspended and he was in custody" in s20(2)(c) plainly means that so long as an inmate is under the sentence of his current term of imprisonment, he never loses the credit for his custodial term of imprisonment which is accorded pursuant to the plain meaning of this subsection. While s20(2) initially takes away any statutory and earned remission, it then specifically re-credits remission earned in the circumstances specified in para (c). It is not limited to "current" remission but applies to all and every remission earned after October 15, 1977. Even if there is unlikely ambiguity, such ambiguity should be resolved by giving the statute the meaning most favourable to the person liable to penalty. The plain meaning of the paragraph is consonant with the objects of the Parole Act.
 
Renaud v The Queen - Unreported, February 18, 1987, No. T-1289-86 (FCTD)
  - The plaintiff prisoner sought a declaration that he was entitled to be credited for time served on parole between January, 1971 and July, 1971, raising the question as to whether or not s20(2)(a) of the Parole Act when applied to him as a prisoner currently under sentence and whose sentence included a term of parole supervision prior to October 15th, 1977, was discriminatory and in contravention of s15 of the Charter and furthermore, depriving him of the credit for time spent on parole while under sentence in 1971 was contrary to the principles of fundamental justice and, therefore, s7 of the Charter. The application was dismissed. The argument with respect to the application of s7 of the Charter was summarily dismissed because it was agreed that the Charter did not operate retroactively. With respect to the s15 argument, the court held, following Re Andrews and the Law Society of BC (1986) 27 DLR (4th) 600, that the law clearly establishes that legislation that classifies or differentiates between groups or individuals does not per se violate the requirement of equal protection or equal benefit of the law under s15 of the Charter. When Parliament amended the Act in 1971, it limited the benefit to persons whose parole is revoked as opposed to forfeited which clearly manifested an intention that this section was not to be retroactive and secondly, Parliament specifically made reference to time spent on parole "after the coming into force of the subsection" which clearly indicated that this section was not intended to be retroactive. Consequently, while the prisoner was clearly in a different category and treated differently from prisoners who have their parole revoked after October 15th, 1977, this did not amount to discrimination within the meaning of s15 of the Charter. Any inequality that arose flowed solely from the prisoner's status at the time of coming into force of the 1977 amendments. All persons with this status were treated similarly. Those persons on parole after 1977 are treated differently because of their different status or conditions. The plaintiff prisoner was not "similarly situated" to those on parole after October 15th, 1977.
 
Gregson v The National Parole Board - (1983), 1 CCC (3d) 13 (FCTD)
  - The applicant applied for an Order quashing the revocation of his mandatory supervision with no recredit of remission by virtue of which he lost some thirteen months remission, and for an Order of mandamus compelling the reconvening of a new hearing to consider in particular the issue of recrediting remission. He claimed that at the hearing neither he nor his assistant was aware of the loss of remission that would flow from revocation and that the Board did not advise him of this consequence nor did it ask any questions related to this issue, or were any submissions made by him or his assistant in relation thereto. He was not represented by counsel. He further submitted that the Board in its decision fettered its discretion by its policy regarding recredit of remission. The policy appearing in the Policy and Procedures Manual of the Board apparently adopted April 16, 1980 provided in part as follows:
 
  "106.4 Grounds for Recrediting Remission.
 
    4.1 Recrediting of remission is always considered by the 'Board at the time of the decision to revoke, but, as a matter of policy, the Board may recredit remission within two (2) months of a revocation.
 
    4.2 Recrediting of remission is a power given to the Board as an exceptional remedy to be used only in exceptional circumstances.
 
                        
 
    4.4 Remission should be recredited only when revocation becomes necessary because of circumstances beyond the inmate's control such as:"
 
  That court commented that it found it strange that a man who had been in prison for nearly eight years along with many others in the same situation had not become aware of the serious consequence of revocation of mandatory supervision, and that it was unfortunate and he did not have legal counsel at that hearing which might have rendered this application unnecessary. The court then refused the relief sought and made the following observations:
 
   (a) No Regulations have been passed pursuant to s9(1)(m) prescribing the terms and condition under which the Board may recredit remission or any part thereof. In the basence of such Regulation the Board is required to examine each case on its merits and make its decision in accordance with the conclusion it reaches in the light of the circumstances of the case and should not by setting a general policy limit its discretion in such cases.
 
   (b) The policy statement in subs. 4.2 that the power to recredit remission was to be used only in exceptional circumstances was valid and not in conflict of s20 of the Act. While s20(3) does not refer to exceptional circumstances s20(2) makes loss of remission automatic when parole is revoked. This rule applies in all cases subject to the power of the Board to recredit remission in whole and in part. This power is not intended to be exercised arbitrarily, but only where the circumstances justify, in the Board's opinion, removing, in whole or in part, the penalty imposed by the general rule in s20(2). In other words, the circumstances must justify excepting the case from the operation of the general rule.
 
   (c) The policy statement in subs. 4.4 to the effect that recrediting remission should only be granted when revocation becomes necessary because of circumstances beyond the inmate's control is invalid. The Board should be in a position to grant recredit of remission whenever in its opinion the circumstances of the case warrant such action, and s20 does not mean that the Board can, by stating policy, prevent itself from recrediting remission in any circumstances other than where revocation has become necessary because of circumstances beyond the inmate's control.
 
   (d) On the facts of the case the reasons given by the Board to revoke appeared to be intended to apply to the entire decision including the decision to not recredit remission and contained Quite different reasons for those decisions other than mere adherence to the parameters of Board policy.
 
Gingras v The Queen (Commissioner of Penitentiaries) - Unreported, January 24, 1983, No. T -3336 (FCTD)
  - In the circumstances of the case, the Board had acted fairly in refusing to recredit the applicant with statutory remission because of the seriousness of the offences committed by him barely two months after he was paroled under mandatory supervision. While the Board referred to Board policy in not re-crediting, it did examine all of the circumstances in arriving at its decision.
 
Dankoski v Warden of William Head Institution - Unreported, June 28, 1985, No. 851 1552 (BCSC)
  - A prisoner was released on mandatory supervision, revoked and then released on parole and then that parole was suspended and revoked. He then applied to have remission reinstated under s20(3) of the Parole Act. His application was considered by members of the National Parole Board and from the Board member comments, it was inferred that the Board, by its decision, intended to recredit the prisoner with a substantial portion of his lost remission. It was indicated in the comments that he should be released at least two months before his warrant expiry date. The prisoner was informed by telex that the decision was to recredit 105 days out of a possible 210 days. He then received a letter indicating that the Board had recredited 105 days remission in order to allow the prisoner to be released on mandatory supervision on a specific date. The letter contained an error in arthmetic. If the prisoner received a recredit of 105 days, his release would have been two months prior to the date indicated in the letter he received from the Board. If he was released on the day indicated in the letter from the Board, he would only have received a recredit of 15 days remission. The prisoner complained but his complaint was effectively denied and he was informed that he would be released on the date set out in the letter he received from the Board and that the Board would modify the amount of recredit in order to ensure that that was the effective release date. The prisoner did not hear back himself from the Board. He then applied for habeas corpus. The application was granted. S2O(3) was obviously in- tended to relieve against the harsh automatic consequences of parole revocation by allowing the Parole Board to examine each case and its discretion, to recredit all or part of the lost remission. To perform that function in accordance with the meaning of the section, the Board would have to be aware of what it is doing in the sense of knowing what part of the remission time it was actually recrediting. The objective of the section must be to allow the inmate to be given his due after consideration by the Board of his individual circumstances. The deciding body could not accomplish that task within the framework of the section without being aware of the size of the recredit being allowed to the inmate. The section empowered the Board to recredit the whole or some defined part of the lost remission time and to communicate that decision to the institution to work out the numbers and decide on the release date. The numbers could be worked out for the Board in advance of its decision being taken so in committing itself to a decision, the Board would know how many days of remission relate to a chosen release date. The Board must decide on the number of days it will remit. That is their statutory function and from that decision, the particular release date will result. S20(3) does not allow the Board to adopt a reverse process of selecting a release date and then obtaining the actual number of days needed to affect release in that date. If the Board followed that process, it could not act in full awareness of the affect of its decision in that it would not know how many days it was remitting. Consequently, on the facts, the Board only made part of its decision and delegated to someone else the vital aspect of its decision making power, namely, the power to decide the number of days to be remitted. The Board has no power to delegate its vital functions. This was not an appropriate case in which to declare the decision to be a nullity and remit the matter back to the Board for correction. The Board was therefore held to its initial decision to recredit 105 days. The Parole Act does not grant the Board power to "modify the recredit" of remission. The Board's actions in the circumstances also violated the applicant's rights under s9 of the Charter, namely, the right not to be arbitrarily detained or imprisoned.
 
Re Hanna - Unreported, December 5, 1988, (NSSC)
  - Hanna's mandatory supervsion was suspended and at the hearing the Board partially recreditted his earned remission to enable the applicant to complete substance abuse programs inside the institution over the next two months. The Board erred in calculating this earned remission recredit. Hanna was given back one half of his earned remission which would have resulted in his immediate release.
      The Board was made aware of its error the day of its decision. It recalled Hanna and reduced his earned remission credit to 68 days so that he would remain in the institution long enough to complete the substance abuse program.
      Nathanson, J rejected the applicant's submission that the Parole Board does not have the jurisdiction to amend its decisions and that having made a decision it is "functus".
      The court reviewed the following decisions: Dankowski v Warden of William Head Institution (1985) 14 WCB 380 (BCSC); Re Garde and The Queen (1977) 34 CCC (2d) 559 (ant HC); Greenberg v National Parole Board (1983) 48 NR 310 (FCA); Sango v National Parole Board [1984] 1 FC 183 (FCTD); and Chester v National Parole Board -Unreported, No. CC881177, Vancouver, July 5,1988 (BCSC).
      In Dankowski it was held that the Parole Board does not have the power to modify the recredit of remission. Nathanson, J noted, however, that in Chester, which was decided by the same judge that decided Dankowski, the court ordered that the Board hold a second hearing to determine the correct number of days of remission to be given the inmate. Nathanson, J took the view that the later Chester decision overruled Dankowski.
      He concluded at p9 that:
 
    "I am firmly of the opinion that what shines through from Carde, Sango and especially Greenberg is the concept that the National Parole Board is an administrative body and, as such, has the power to reconsider or review its own decisions. That includes the power to rectify an earlier recredit of remission."
 
Chester v National Parole Board - (1989) 48 CCC (3d) 506, 37 Admin LA 27 (BCCA)
  - Chester was notified by the Board on August 5, 1987 that he would be recredited with 852 remission days following the revocation of his parole. Then on Sept 24, 1987 the Board notified him that they had decided to recredit only 305 days. Chester challenged the Board's jurisdiction to change its previous decision.
      Toy, J for the Court concluded that the Board did not have the power to change its earlier decision.
      On his reading of s28 of the Parole Act Toy, J concluded that the Board's decisions "were final and conclusive determinants" of Chester's parole revocation and consequent loss of 862 earned remission days, as well as the recredit of 852 remission days.
      The court reviewed the Hanna decision and the cases considered therein, but went on to adopt the proposition put forward by Lord Goddard in R v Agricultural Land Tribunal (Southeastern Area) Ex Parte Hooker [1952] 1 KB 1 (CA) at p6:
 
    "It may be that this case will show the desirability of rules being made which in some way will enable a tribunal, if they do make a mistake, to rectify it. If such rules were made it may be that the rule-making authority of the Minister would think fit to say within what time it could be rectified, and on what terms, and matters of that sort. As the matter now stands, it seems to me that the Order is conclusive and that this tribunal had no power, once the decision had been certified in accordance with the rules, to issue some other decision claiming that the later decision was to be taken as the decision of the tribunal and not the one which was certified and sent to the parties in the first instance."
 
      He concluded at p9 that:
 
    "...even if the Parole Board's first decision be considered as one containing a mistake or as one not accurately reflecting the Parole Board's intention, having pronounced and published their decision to recredit 852 days the Parole Board has no inherent power to change it at a later date."
 
      It should be noted that the court made it clear that it was not removing the Board's right to correct clerical errors. As stated by Toy, J at p15:
 
    "I add that in my opinion the mistake in this case was not a simple clerical error. If an order made by the Parole Board misspelled an inmate's name or gave the wrong inmate or record number, then an error of that type could be rectified by the Board. The decision as recorded and communicated would not be being changed by such a rectification. Such a case is different from this case where the very substance of the I, decision itself, as recorded and communicated to the inmate, was being changed by the Parole Board."
 
    Editorial Note - It appears that the court's decision was at least partly due to a somewhat different characterization of the Board's function when it was deciding issues of earned remission than that adopted by the court in Hanna. Noting that counsel for the appellant had conceded that the Board was exercising an administrative function, Mr. Justice Toy expressed the view that:
 
    "Although it is not essential to the conclusion that I have arrived at on this appeal, I have grave doubts that where an inmate is being subjected to a loss of earned remission the tribunal can be said to be exercising merely an administrative function." (pp13-4)
 
      In support of his view Mr Justice Toy referred to Employment and Immigration Commission of Canada v MacDonald Tobacco Inc (1981) 121 DLR (3d) 546 (SCC), at p550, where Chief Justice Laskin held that:
 
    "...it is no longer sensible to retain the old stereotyped classifications of statutory authority as being either administrative or judicial (or quasi- judicial) as providing a basis for review by the Courts in the latter case but not in the former. It is more compatible with substance to look at statutory tribunals or boards or authorities in terms of the functions which, either at large or in a particular situation, they are obliged to discharge."
 
      The BC Court of Appeal's emphasis on the "function" of the Board is worth noting as being consistent with the traditional general approach taken in administrative law to characterizing a tribunal when it is necessary to do so. However, it is inconsistent with earlier decisions of the Supreme Court of Canada and the Federal Courts, when compelled to characterize the nature of the National Parole Board, for purposes of determining the jurisdiction of the Federal Court of Appeal under s28 of the Federal Court Act which gives the Court of Appeal jurisdiction over matters "required by law to be made on a judicial or quasi-judicial basis". See, for example, the decisions of the Supreme Court of Canada in Re McCaud [1965] 1 SCC 168, Howarth v National Parole Board [1976] 1 SCR 453, Mitchell v The Queen [1976] 2 SCR 570 and Meldrum v National Parole Board (1981) 37 NR 541 (FCA). These cases are an- notated under s6 of the Parole Act.
      The same arguments were made in relation to the characterization of inmate disciplinary boards in the context of the jurisdiction of the Federal Court of Appeal under s28. In this regard, see Martineau and Butters v Matsqui Institution Inmate Disciplinary Board (No.1) [1978] 1 SCR 118 and Martineau v Matsqui Institution Disciplinary Board (No.2) (1979) 30 NR 119. It is submitted that it is apparent that, as a matter of policy, the courts were reluctant to characterize decisions of Parole Boards or disciplinary boards as being "required by law to be made on a judicial or quasi-judicial basis" to give the Federal Court of Appeal initial jurisdiction under s28 of the Federal Court Act. This would have enabled complainants to proceed directly to the Federal Court of Appeal and from there to the Supreme Court of Canada by passing the Federal Court Trial Division. Instead, the courts expanded the ambit of certiorari to enable such decision to be reached on judicial review in the Federal Court Trial Division even if they continued to be characterized as "purely administrative".
      Arguably, statutory amendments to the Parole Act and Regulations and the advent of the Canadian Charter of Rights and Freedoms provide strong ammunition for reconsideration of the earlier decisions characterizing the Board as "purely administrative". On the other hand, it is equally arguable that it is unnecessary to reopen the jurisdictional debate involving the interpretation of ss18 and 28 of the Federal Court Act so long as the Federal Court Trial Division, under s18, and the provincial superior courts, under their habeas corpus jurisdiction, are prepared to recognize clearly that the functions of the Board have a significant impact on the liberty interests of inmates who appear before it and apply appropriate principles accordingly. In Hanna (supra), the court appears to analyze the function of the Board from a structural point of view as opposed to a functional one and, consequently, having characterized the Board as "administrative", the remaining analysis is somewhat superficial. On the other hand, in Chester (supra), the court recognizes the Board as being an administrative body in structure but with functions more akin to a criminal court with the power to determine the length of time a person will remain in custody and, therefore, having a significant impact on liberty interests and, therefore, attracting the applicability of the principle of "functus officio".
 
    Editorial Note - The decision of the Ontario High Court in Re Carde and The Queen (supra) is annotated under s13 of the Parole Act. See also the decision of the Federal Court Trial Division in Beaumier v National Parole Board that is also annotated under s13 of the Parole Act. The decision of the Federal Court Trial Division in Sango v The National Parole Board is annotated under s16 of the Parole Act and referred to under s11. It is also referred to under s20 of the Parole Regulations. The decision of the BC Supreme Court in Dankowski is also annotated under s9 of the Constitution Act, 1982 (The Charter).
 
In Re Bishop - Unreported, January 13, 1984 Vancouver No. CC832024 (BCSC)
  - A parolee's parole was suspended and a warrant of apprehension issued but he was not arrested on that warrant until approximately five months later. In the interim his parole had been revoked. On recalculation of his sentence he was not given credit for the time he spent at large between the date of suspension and the date of revocation of his parole, a period of approximately two and one-half months. He sought habeas corpus with certiorari in aid claiming that he should have been given credit for this time and was therefore entitled to his release on mandatory supervision. The court held that the period of time spent by the applicant out of custody between the date of suspension of his parole and the date of revocation should not be taken into account. This period of time did not come within the definition in s20(2)(a) as "time spent on parole" because "parole" is defined in s2 of the Act to mean "...authority granted under this Act to an inmate to be at large during his term of imprisonment..." and when the petitioner's parole suspended and the warrant issued, his authority to be at large was withdrawn as of that date and he was no longer on "parole" as that word is defined in s2 of the Act. Furthermore, subs (b) and (c) did not apply to an inmate whose parole was suspended but was out of custody. Subsection (d) did not apply because that subsection came into force on October 15, 1977 a date prior to the time of imprisonment of the petitioner. The court distinguished the Vidlin case (see annotation under ss13 and 16) because in that case the revocation occurred after the scheduled date for the expiration of the term of imprisonment. Here the suspension, revocation and arrest took place prior to the expiry of sentence. In coming to this conclusion the court relied up on the case of Zong (see annotation under ss13 and 21) and Ex parte Davidson (see annotation under ss2, 13 and 21).
 
    Editorial Note - The Ontario Court of Appeal reached the same conclusion prior to this decision in the case of R v Agg, unreported, June 29, 1978. Also note that the Jackson case involved the grant and revocation of day parole after October 14, 1977 when s25 (formerly s20) came into effect.
 
MacLean v Attorney General of Canada et al - [1980] 1 FC 163 (TD)
  - This section is equality applicable to an inmate granted day parole prior to this section coming into effect (October 15, 1977) and revoked thereafter. Parliament obviously intended that this section applied to a person granted parole prior to the coming into force of the section and that there should be no distinction between classes of parole with the same consequences in the event of revocation of either day or general parole.
 
Re Hills and R - (1981),58 CCC (2d) 479 (BCSC)
  - An inmate whose day parole is revoked but he was not apprehended is not entitled to a credit for the period of time at large between the date of revocation and the date of apprehension. When parole is revoked a new sentence comes into being but it is the statute not the gaoler that determines the length of sentence.
 
Re Asham - (1979) 1 Sask R 169 (CA), [leave to appeal to SCC refused)
  - The new s20 (now s25(2)) does not have retrospective effect. The section is clear and unambiguous. The "notwithstanding" clause does not apply to a revocation which occurred prior to this amendment, only to subsequent revocations. Section 35(b), (c), and (e) of the Interpretation Act, RSC 1970, c1-23 apply. Further, revocation of mandatory supervision after automatic forfeiture by virtue of the old s17, does not affect the earlier forfeiture -following Ex parte Kaduke (1974) 19 CCC (2d) 298.
 
Ex parte Prescott; Ex parte Dubois - (1973), 11 CCC (2d) 440 (Ont HC)
  - Upon revocation of parole under this section, all remission, both earned and statutory, standing to the credit of the inmate at the time parole was granted to him is forfeited, notwithstanding that s24(2) of the Penitentiary Act, RSC 1970, cP-6, proceeds to restore the earned remission. All statutory remission is lost.
 
Ex parte Hilson - (1973), 12 CCC (2d) 343 (Ont HC)
  - The words "terms of imprisonment" in s16(1) of the Parole Act (now s25(2)) as defined by s25 (now 527) of the Penitentiary Act, include any period of statutory remission standing to the credit of an inmate at the time parole was granted. The amendment to s16(1) merely clarifies the law by expressly including in the remanet to be served all remission accrued to the date of parole. The amendment is applicable where parole was granted prior to the effective date of the coming into force of this section (August 26, 1969) and is revoked thereafter.
 
Ex parte Kolot - (1973),13 CCC (2d) 417 (BCSC)
  - This section does not apply to a person paroled before August 26, 1969, whose parole is revoked after that date. The predecessor of this section (then 516) does apply under which there is no forfeiture of remission.
 
    Editorial Note - At the time of the release on parole the former s16 (now s22) simply provided that upon recommittal the parolee would serve "the portion of his original term of imprisonment that remained unexpired at the time his parole was granted". Before his parole was revoked it was amended to read that upon recommittal he would have to "serve the portion of the term of imprisonment that remained unexpired at the time parole was granted to him, including any period of remission, including earned remission, then standing to his credit, less any time spent in custody as a result of a suspension of his parole". After his revocation but before the decision was handed down in this case that section was amended and renumbered s20 (now s25). Also note procedural comment that "if an inmate of a penal institution comes before this court and deposes that he has served the sentence imposed upon him, it is for the Crown to show that the facts deposed to are incorrect or that certain relevant facts have not been presented to the court."
 
R v Dwyer - [1975] 4 WWR 54 (BCSC)
  - A person sentenced after August 26, 1969 (when the former ss20 and 21 came into effect) whose parole is forfeited by conviction for an indictable offence committed while on parole, will lose all statutory remission standing to his credit at the time he went out on parole. However, s21 (or 20) are not to be given retrospective effect. Therefore, a person who is committed to prison before August 26, 1969 obtains a vested right to statutory remission, which right remains unaffected by s21 (or 20) unless such person's statutory remission is forfeited pursuant to subs 22(3) or (4) (for an escape or disciplinary offence) of the Penitentiary Act. Consequently, this statutory remission must be taken into account in computing the remanet to be served upon revocation (now s25) or forfeiture (now s25.01) of parole.
 
Ex parte Spice - (1975), 23 CCC (2d) 141 (Ont HC)
  - This section does not apply to an inmate sentenced before August 26,1969 but paroled after that date. Rather, the inmate does not forfeit statutory remission upon revocation because this section's predecessor, s16(1) of the Parole Act, 1958, c38, applies.
 
Ex parte Krachan - (1975), 24 CCC (2d) 114 (Ont HC)
  - The statutory remission credited to a prisoner at the commencement of his sentence prior to August 29, 1979 is a matter of entitlement and right. There is doubt and ambiguity as to the effect of the amendments to the Parole Act upon the statutory remission earned by a person sentenced to the penitentiary prior to August 29, 1969. As a result the ambiguity must be resolved in favour of the liberty of the subject. Consequently, a person sentenced prior to August 26, 1969 and paroled thereafter does not lose his statutory remission on revocation of that parole.
 
Ex parte Fraser - (1975),27 CCC (2d) 478 (Man CA)
  - A prisoner sentenced prior to August 26, 1969 (when this section came into effect) and paroled thereafter will forfeit all remission, both statutory and earned, upon revocation of his parole.
 
Ex parte Thompson - (1975), 25 CCC (2d) 228 (NSSC)
  - Under this section, a parolee on revocation of his parole loses any period of remission including earned remission then standing to his credit and statutory remission. Editorial Note -In this case the prisoner was sentenced, paroled and revoked after August 26, 1969.
 
Ex parte Carlson - (1975), 26 CCC (2d) 65 (Ont CA)
  - A prisoner whose day parole is revoked pursuant to 516 of the Parole Act does not lose the remission standing to his credit at the time day parole was granted under this section because this section speaks of being "recommitted" to confinement whereas s13 provides that a prisoner on day parole is deemed "to be continuing to serve his term if imprisonment in the place of confinement". This ambiguity must be resolved in favour of the liberty of the subject.
 
Ex parte Hanna - (1975), 27 CCC (2d) 192 (Ont CA)
  - There is no need for the Parole Board to seek a warrant of "recommittal" under s18 if a warrant under s16 has been issued suspending mandatory supervision, and a subsequent decision to revoke has been made. The above mentioned steps effectively constitute the recommitment" required by s20(1) with respect to revocation of mandatory supervision.
 
Ex parte Lambert - (1975), 27 CCC (2d) 568 (Ont HC)
  - This section expressly provides for the forfeiture of all remission on revocation of mandatory supervision. The prisoner must serve a period of time equal to the portion of his term of imprisonment that remained unexpired at the time he was released on mandatory supervision. Consequently, the period served on mandatory supervision is not credited against the sentence remaining to be served.
 
Skittv Solicitor General of Canada et al - [1976]1 FC 556,29 CCC (2d) 392 (TD)
  - Following Ex parte Carlson, supra, this section does not apply to revocation of day parole and consequently an inmate whose day parole is revoked does not lose the remission standing to his credit when day parole was granted and further, he is entitled to credit for the time he spent on day parole in recalculating the sentence to be served.
 
Judicial Consideration -
 
    Note - The following cases were decided under s16 of the Parole Act SC 1958 c38:
 
Re Morin - [1969] 2 CCC 171 (Sask CA)
  - Section 25 of the Penitentiary Act, 1960-1961, c53 defines "term of imprisonment" for all purposes of the Parole Act as including any period of statutory remission standing to the inmate's credit at the time parole was granted. Therefore, the words "term of imprisonment" in I this section means that upon recommittal for revocation of parole under this section the parolee must serve the portion of his sentence which was unexpired at the time parole was granted including any period of statutory remission standing to his credit at that time.
 
Re Gardner; ex parte Hamilton - [1970] 2 CCC 165 (Ont HC)
  - A warrant of committal on revocation of parole issued by a judge pursuant to s14 (now s18) of the Parole Act authorizes recommitment in accordance with s16 of the Parole Act and the judge is not authorized, by the statute to stipulate the time to be served, which is governed by s16 and is a matter of calculation by penitentiary authorities. If I' the warrant stipulates the time to be served, the warrant is still valid and the portion stating the time to be served is mere surplusage. A judge has exhausted his powers once the warrant is issued and a second warrant purporting to amend the first is invalid.
 
Ex parte Allard - (1970), 1 CCC (2d) 461 (BCSC)
  - The liberty of the subject is an area in which precision or imprecision of terminology is crucial and any ambiguity should be resolved in favour of the imprisoned subject. This section speaks of "recommittal" whereas s22(1) of the Penitentiary Act speaks of "committal" and consequently an inmate when returned to custody on re-apprehension on suspension of parole must be regarded as having then commenced to serve the balance of his "sentence" as that term is used in s22(1) and is therefore entitled to statutory remission from that time. In other words a prisoner remains an "inmate" on being returned to custody after suspension.
 
Ex parte Gannon - (1971), 3 CCC (2d) 267 (BCSC)
  - Section 16(1) (now s25(1)) of the Parole Act contemplates a delay between suspension and revocation of parole and credits the prisoner with such time in custody. There is no entitlement to statutory remission on this time as well by virtue of s22(1) of the Penitentiary Act which applies only after the prisoner has been "sentenced or committed...for a fixed term" which occurs only upon the decision to revoke his parole. (Editorial Note -compare with Ex parte Allard, supra.)
 
Ex parte Dodge - [1972] 1 OR 752 (Ont HC) (obiter dicta)
  - Where an inmate was sentenced and then released on parole prior to the effective date of Parole Act amendments but is then subsequently taken into custody upon suspension and revocation of his parole, the section of the Parole Act enforced at the time he was released on parole is applicable and not the new section. In other words, upon revocation the remaining term of imprisonment to be served by him should not be increased by giving retrospective effect to the amendments.
 
Le Heinsworth v Solicitor-General of Canada et al - [1973] FC 1200 (TD)
  - Following the decision of the Ontario Court of Appeal in Marcotte (1973), 13 CCC (2d) 114, a parolee forfeits statutory remission when parole is revoked. (Editorial Note -The Marcotte case was reversed on appeal to the Supreme Court of Canada.)
 
Marcotte v Deputy Attorney General of Canada - [1976] 1 SCR 108, 3 NR 613, 51 DLR (3d) 259, 19 CCC (2d) 257
  - The definition of "term of imprisonment" in s25 of the Penitentiary Act 1960-1961, c53 does not have the effect of causing forfeiture of statutory remission upon revocation of parole. If parole was granted and revoked before August 26, 1969 (the date s16 came into effect) then the predecessor of this section applied.
 
Ex parte Le Heinsworth - (1974), 21 CCC (2d) 26 (Ont HC)
  - An inmate who is paroled before August 26, 1969 and whose parole is revoked after that date does not lose the statutory remission to which he was entitled at the time parole was granted. The amendments are not retrospective. Any change in the rights, privileges and restrictions of parole have a direct affect on the liberty of the subject.
 
Re Abbott - [1970] 3 OR 803, 13 CANS 69,1 CCC (2d) 147 (HC)
  - While statutory remission is to be credited upon the receipt of an inmate at the penitentiary, it is a deferred credit which only inures to the prisoner's benefit at the end of the term of imprisonment. The combined operation of s22(1) and section 25 of the Penitentiary Act and s17(1) of this Act, make it clear that statutory remission resulting from any previous term of imprisonment should be disregarded upon receipt of the prisoner in the penitentiary to which he is committed to serve a new sentence imposed for a conviction for an indictable offence committed while on parole, which results in forfeiture of his parole under this section. He will be credited with statutory remission on the new sentence.
 
Ex parte MacDonell - (1973), 14 CCC (2d) 103 (Ont CA)
  - A parolee whose parole is suspended and then revoked and then later has his parole forfeited under this section for conviction of an indictable offence, is entitled to be credited with statutory remission on the time served between revocation of his parole when he was committed to the penitentiary and his conviction which led to the forfeiture.
 
Re National Parole Board v Edmonds - [1974] 2 FC 68, (1974) 18 CCC (2d) 401 (FCA)
  - A parolee who is arrested and charged with an indictable offence while on parole and held in custody for a period of time before his release on bail before trial, is not entitled to be credited with the time spent in custody without bail if his parole has not been suspended or revoked under s10 or 16 of this Act. Consequently, once convicted of the indictable offence, he forfeits his parole under this section and does not get credit for the time in custody without bail. The underlying injustice in this matter is the fault of the statutory law.
 
Ex parte Kaduke - (1974), 19 CCC (2d) 298 (Ont HC)
  - A parole may be both forfeited and revoked. Revocation does not preclude forfeiture, since the forfeiture will be deemed by s17(1) to have occurred at the time the offence was committed. Thus, a parolee whose parole is revoked and who is then convicted of an indictable of fence resulting in forfeiture must serve the sentence imposed for the indictable offence consecutive to the remanet of his old sentence pursuant to this section.
 
Ex parte Davidson - (1974), 22 CCC (2d) 122 (BCCA)
  - This section applies to day parole r as well as to full parole.
 
R v Dwyer - [1975] 4 WWR 54 (BCSC)
  - A person sentenced after August 26, 1969 (when ! s21 came into effect) whose parole is forfeited by conviction for an indictable offence committed while on parole, will lose all statutory remission standing to his credit at the time he went out on parole. However, s21 is not to be given retrospective effect. Therefore, a person who is committed to prison before August 26, 1969 obtains a vested right to statutory remission, which right remains unaffected by s21. Unless such person's statutory remission is forfeited pursuant to s22(3) or (4) of the Penitentiary Act (for an escape or disciplinary of. fence), it must be taken into account in computing the remanet to be served upon recalculation of one's sentence after forfeiture or parole.
 
R v Evans - (1975), 24 CCC (2d) 300 (NSSC -App Div)
  - In sentencing a convicted parolee the trial judge should take into account the additional punishment imposed by the effect of forfeiture of parole under this section, in determining what sentence is fit.
 
Ex parte Kerr - (1975), 24 CCC (2d) 395 (Ont CA)
  - This section as well as the provisions of r s17 of the Parole Act apply to day parole as well as general parole.
 
Ex parte Kerswill - (1975), 28 CCC (2d) 362 (Ont HC)
  - If the sentence for an indictable of- fence imposed on a parolee is ambiguous in that it may have been intended to be served concurrently with the remanet, then the ambiguity is t? be resolved in favour of a legal and therefore a consecutive sentence, as required by this section. A sentence of the two terms of "...deux (2) ans de prison, a etre purgees concurrement, a compter de ce jour" is to be served consecutively to the remanet.
 
Zong v Commissioner of Penitentiaries - [1976] 1 FC 657, 29 CCC (2d) 114 (FCA)
  - This section applies to all prisoners released on parole on or after August 26, 1969, (the date this section came into effect), whether or not they were originally sentenced before or after that date. This section applies to both general parole and day parole and consequently an inmate whose day parole has been terminated gets no credit for the time spent in custody after termination prior to the conviction which results in forfeiture .of parole. The forfeiture of remission includes both earned and statutory remission.
 
Howley v Deputy Attorney General of Canada - (1976), 9 NA 421, 34 CANS 302, 69 DLA (3d) 689 (SCC)
  - This section applies to a prisoner who was originally sentenced prior to August 26, 1969 but was paroled after that date and consequently forfeited his parole after that date upon conviction for an indictable offence while on parole.
 
R v Connors - (1977),34 CCC (2d) 175 (Ont CA)
  - The provisions of s659(6) of the Criminal Code, which provides that an indeterminate sentence is seemed not to have been imposed for the purpose of determining where an inmate is required to serve his sentence, are inapplicable where a sentence is required to be served in a penitentiary under 821 of the Parole Act as the result of a forfeiture of parole under s17 and this section.
 
Re Lawson - Unreported, June 26th, 1980, No. CC800657, Vancouver (BCSC)
  - A prisoner was released on mandatory supervision and then arrested for an offence and taken back into custody. While in custody, his original sentence expired and then he pleaded guilty to an indictable offence and was remanded in custody awaiting admission to a narcotic: addiction treatment institution. He was admitted to such an institution but was released therefrom on September 26th, 1977. On October 15 1977, this section of the Parole Act was repealed. On February 14 1979, he was sentenced for the indictable offence to a suspended sentence. On February 18 1980, the National Parole Board issued a warrant of apprehension pursuant to the repealed sections and on May 13 1980, he was arrested and on May 22 1980, recommitted to custody pursuant to s21. The Board took the position that he was required to serve 127 days from May 13 1980 expiring September 16 1980 and that he would be under mandatory supervision until January 5 1981. The court held that ss17, 18 and 21 of the Parole Act continue to operate subsequent to their repeal because the prisoner/parolee had forfeited his parole by operation of law upon his conviction on August 241977. Nevertheless, s21 provides that upon such forfeiture, the term of imprisonment commences when the sentence for the indictable offence is imposed and that sentence had expired prior to his arrest on the warrant of apprehension. Therefore, the sentence the applicant might have been required to undergo had expired and there were no grounds to justify for the detention. Habeas corpus was issued.
 
O'Brian v Attorney General of British Columbia et al - Unreported, March 18th, 1981, No. CC810237, Vancouver (BCSC)
  - A prisoner was released on mandatory supervision and then after his 'warrant expiry date had passed, was convicted of an offence and sentenced to three years imprisonment. Subsequently, he was convicted of yet another offence which had occurred 126 days prior to his warrant expiry date. He was sentenced to six-years for that offence 'consecutive to any sentence now being served'. The prison authorities in calculating the sentence treated the six-year term as consecutive to the three-year term for a total of nine years. The applicant brought habeas corpus claiming that the six-year term was consecutive to the 126-day remanet by virtue of the forfeiture of his parole under section 21 and that the three-year term would be concurrent. The court agreed, holding that the three-year term could only be served concurrently to the six-year term if the provisions of section 21 are to be observed.
 
Kula v Picard and The Queen - Unreported, March 18, 1982 No.T-1356-82 (FCTD)
  - The applicant was released on mandatory supervision, suspended on five new offences and then sentenced to five years on the first count and varying numbers of months on the other four counts concurrent to the sentence on count one. He was then revoked. It was held that s649 of the Code operates "except where a relevant enactment otherwise provides" and therefore there is no conflict between the general provisions of that section and s21 of the Parole Act which latter section "peremptorily determines the time that an inmate on parole or under supervision must serve if his parole is terminated as a result of a new sentence, and it provides that this time shall be what remained unexpired on the old sentence in addition to that of the new sentence."
 
  See also McClarty v The Queen (Correctional Service of Canada) -Unreported, April 27, 1992, No. CR 91-01-11462, Winnipeg (Man QB) under Parole Acts20.
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