Re-Examination of Board Decisions

Morgan v Director of Stony Mountain Institution - (1982), 16 Man R (2d) 58, 30 CR (3d) 125 (Man QB)

Morgan v Director of Stony Mountain Institution - (1983) 1 CCC (3d) 436 (Man CA)

MacDonald v National Parole Board - [1986] 3 FG 157 (FCTD)

Ng v National Parole Board - Unreported, November 19, 1986, No. 392/86 (Ont CA)

Grey v National Parole Board - Unreported, April 11, 1986, No. T-9-86 (FCTD; Ecklund v National Parole Board -Unreported, April 11, 1986, No. T-57-86 (FCTD)

Henderson v National Parole Board and Warden of Matsqui Institution - Unreported, November 2, 1987, No. CC981788, Vancouver (BCSC) (Butterworths No. 32718)

Quesnel v National Parole Board - Unreported, November 5,1985 No. A-582-84 (FCA)

Okeynan v Warden of Prince Albert Penitentiary - Unreported, March 25, 1988, No. T -261-88 (FCTD)

Poole v Canada (National Parole Board) - Unreported, October 4, 1991, No. 3092/91 (Nfld SCTD) (Butterworths No. 36193)

Editorial Note - It would appear that the learned judge has misconstrued the law in this decision. While it is true that habeas corpus is not a substitute for an appeal in criminal cases where there is a full right of appeal to a court of appeal from conviction at the trial level, that principle is not to be extended to deny habeas corpus simply because a prisoner has failed to have access to internal administrative appeals. On the other hand, a failure to access existing internal remedies may be a factor in the court declining to grant habeas corpus in it's discretion. See Morgan v Director of Stoney Mountain Institution (supra) at p618 and 618.1.

Kenny v National Parole Board, et al - Unreported, June 14, 1991, No. T-1256-91 (FCTD)

Editorial Note - In Kenny, Pinard J takes the position that if an appeal has been taken pursuant to regulation 22 to the Appeal Division of the Board in Ottawa, that then any subsequent application to the courts to quash should be to quash the decision of the Appeal division as opposed to the original decision of the Board that was under appeal. Other cases have held that one does not have to resort to the appeal procedure to obtain certiorari to quash and also that whether one has taken an appeal or not is merely a factor to consider in the exercise of the discretion to grant the remedy to quash or not.

22. Where a decision is made by the Board in respect of a federal inmate that [SOR/78-524]
(a)	denies full parole to that inmate, other than to an inmate referred to in section 11.1, [SOR/81-487]
(b)	revokes the parole granted to that inmate, or
(c)	revokes the mandatory supervision of that inmate, the inmate may request the Board to ex-examine the decision.
(d)	directs, pursuant to paragraph 15.4(4)(a) of the Act, that the inmate shall not be released from imprisonment prior to the expiration according to law of the sentence the inmate is serving, [SOR/86-817]
(e)	imposes, pursuant to paragraph 15.4(4)(b) of the Act, as one of the conditions of the release on mandatory supervision of the inmate, residence in a community-based residential facility, [SOR/86-917]
(f)	confirms, pursuant to subsection 15.5(2) of the Act, an order made pursuant to paragraph 15.4(4)(a) of the Act,
(g)	substitutes, pursuant to subsection 15.5(2) or (5) of the Act, an order made pursuant to paragraph 15.4(4)(b) of the Act for an order made pursuant to paragraph 15.4(4)(a) of the Act, or [SOR/86-917]
(h)	declares that, at the time the case of the inmate was referred to the Board pursuant to subsection 15.3(2) of the Act or to the Chairman of the Board pursuant to subsection 15.3(3) of the Act, the inmate was serving a term of imprisonment that included a sentence imposed in respect of an offence mentioned in the schedule to the Act that had been prosecuted by indictment and that, in the Board's opinion, the commission of the offence caused the death of or serious harm to another person, [SOR/86-919]
(2) Where the Board receives a request referred to in subsection (1) within 45 days after the date on which the Board notified the inmate of its decision, the Board shall, and in any other case the Board may, re-examine the decision. [SOR/91-563]
(3) A re-examination under this section shall
(a)	be conducted by Board members who did not participate in the decision being re-examined; and
(b)	be conducted by way of a re-examination of the material on which the decision being re-examined was rendered by the Board, together with any other relevant information that was not available at the time of that decision.
(4) Where an inmate requests a re-examination of a decision, the Board shall, within 15 days after the conclusion of the re-examination, inform the inmate, in writing, of the decision taken on the re-examination and of the reasons therefore. [SOR/91-563]
(5) Revoked [SOR/91-563]
[SOR/86-917; SOR/91-563]

*Judicial Consideration* -

Morgan v Director of Stony Mountain Institution - (1982), 16 Man R (2d) 58, 30 CR (3d) 125 (Man QB)
	- The court held that this section was not a substitute for certiorari to quash a decision made without jurisdiction because the procedure under this section is not conducted on the same principles. The court therefore declined to exercise its discretion to refuse relief because of an alternative remedy under this section. Affirmed, see next annotation.

Morgan v Director of Stony Mountain Institution - (1983) 1 CCC (3d) 436 (Man CA)
	- The Manitoba Court of Appeal affirmed this decision dismissing an appeal by the Director of Stony Mountain. The court held that the order of revocation stood until it was quashed by the judgment of the Federal Court of Appeal and that Morgan was being detained in custody pursuant to that order and further, that the warrant of suspension had expired or become spent.

MacDonald v National Parole Board - [1986] 3 FG 157 (FCTD)
	- Upon an application for certiorari to quash a decision of the National Parole Board denying day parole or alternatively, to order mandamus to compel the Board to render a decision granting day parole or, in the further alternative, to order a hearing on the question, the court held that a failure to request a re-examination of the decision under this section was a factor in the court exercising its discretion not to grant the relief sought in the absence of extraordinary reasons for by-passing such a request for re-examination being put before the court.

Ng v National Parole Board - Unreported, November 19, 1986, No. 392/86 (Ont CA)
	- An application to re-examine a decision of the Board revoking parole was set aside as defective where the defect went to jurisdiction and amounted to a denial of natural justice. The Board acted on information from statements which it had in its possession and did not make them available to the applicant so as to afford him an opportunity to answer them. The Board failed to provide the applicant with relevant information upon which it might judge him and made a serious error in treating a guilty plea of the applicant's co-accused at a previous trial as evidence that the applicant was a co-conspirator when the applicant was acquitted. While the Board was entitled to look at the applicant's conduct it was not entitled to draw that inference. A new hearing was directed before a different panel of the Board under s22 of the Regulations. The original revocation order could not be reached by the court in the proceedings.

Grey v National Parole Board - Unreported, April 11, 1986, No. T-9-86 (FCTD; Ecklund v National Parole Board -Unreported, April 11, 1986, No. T-57-86 (FCTD)
	- On application for certiorari to quash decisions denying day parole and, in the alternative, mandamus to compel a favourable decision, or, in the further alternative, to order a new hearing, the court took into account the failure on the part of the applicants to request an in-person hearing at the time they day-parole applications were considered and their failure to request re-examination of the decisions under this section in deciding to exercise its discretion against granting the relief sought and noting that the remedies sought were discretionary. While the failure to apply for an in-person hearing or request re-examination did not preclude the application to the courts, it reflected an attitude which prevented the court from exercising its discretionary power in the applicant's favour.

Henderson v National Parole Board and Warden of Matsqui Institution - Unreported, November 2, 1987, No. CC981788, Vancouver (BCSC) (Butterworths No. 32718)
	- The applicant sought habeas corpus with certiorari in aid to quash the decision revoking his mandatory supervision.
	After the applicant was apprehended and re-committed to custody, he was interviewed by a parole officer pursuant to s16(3) of the Parole Act and s20(1)(c) of the Parole Regulations. The parole officer stated that he had advised the applicant of the reasons for the suspension and the gist of the evidence upon which those reasons were based and that the applicant denied involvement in the alleged activities or any violation of his conditions and during the course of this denial, expressed anger and walked out of the Interview saying, "To hell with it. Do whatever you want." This occurred prior to the officer being able to put before the applicant a form which Indicated whether or not the applicant wished to have a hearing before the Board or waive such a hearing. The officer said that he had asked the applicant to sign the form and it was at that point when the applicant made the comment alleged. Subsequent to this Interview, the parole officer did not cancel the suspension under s16(3) but referred the case to the Board and the Board then revoked the applicant's parole.
	Between the time of the interview by the parole officer and the Board's decision to revoke, there was no communication with the applicant to determine whether or not he wished to apply for a hearing. Apparently, the applicant did not receive the telex communicating to him the decision to revoke. The applicant had availed himself of the appeal under s22 of the Parole Act and that body upheld the original decision of the Parole Board.
	The court concluded that the evidence did not support that the parole officer had unequivocally told the applicant that it was his intention not to cancel the suspension but refer the matter to the Board. The court interpreted the applicant's comment as simply meaning that the applicant would use the most discourteous language and you can either cancel my suspension or you can refer it to the Board but it's for you to decide. The applicant's comment could not be construed as a waiver of his entitlement to a hearing. Furthermore, the application for a hearing does not arise until after the reference to the Board has been made. Before the matter is referred to the Board, the prisoner simply cannot apply for a hearing.
	Furthermore, the fact that the applicant had availed himself of the appeal provisions did not amount to a waiver either. The Appeal Board does not conduct a hearing at which the prisoner Is entitled to be present and be heard In person but rather, conducts its proceedings in writing. This Is not a substitute for the original hearing before the Board. The court concluded that at common law, there was a denial to the applicant of the opportunity to apply for a hearing.
	The court then went on to consider whether, In light of that decision, the applicant should be restored to mandatory supervision or the suspension restored. The court compared the decision of the Ontario High Court in Re Conroy (1983) 5 CCC (3d) 501 which concluded that once the revocation was quashed the suspension remained In force, with the decision of the Manitoba Court of Appeal In Morgan v The Director of Stony Mountain Institution (1983) 1 CCC (3d) 436 where that court concluded that the suspension warrant had been spent upon the revocation and when the revocation warrant was quashed, It cannot be revived. The court chose to follow the decision of the Manitoba Court of Appeal In preference to the decision of the Ontario High Court and granted the application restoring the applicant to mandatory supervision.

Quesnel v National Parole Board - Unreported, November 5,1985 No. A-582-84 (FCA)
	- The applicant appealed the decision of the Parole Board at his post- suspension hearing on the ground that he was not given fair advance notice of the matters that would be raised at the hearing. Hugessen, J, writing for the court, dismissed the appeal. The court assumed, without deciding, that the Board did not give fair and proper advance notice to the applicant of all matters that would be raised at the post-suspension hearing but was of the view that because there was no doubt that those matters were fully aired at the hearing In the presence of the applicant and his lawyer, without any objection or request for an adjournment, the appeal should be dismissed. The court further held that the applicant's failure to take advantage of the review procedure in s22 of the regulations, even though offered to him by the Board after the expiry of the normal delay for doing so, created circumstances In which it was appropriate to deny the discretionary relief of certiorari.

Okeynan 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.
	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.

Poole v Canada (National Parole Board) - Unreported, October 4, 1991, No. 3092/91 (Nfld SCTD) (Butterworths No. 36193)
	- An application for habeas corpus with certiorari in aid to seek release and reinstatement of mandatory supervision with no conditions and full re-credit of remission or such other remedy under s24(1) of the Charter was dismissed. The applicant was suspended for an alleged breach of a special condition, waived his right to an oral hearing before the Board and did not appeal the subsequent paper decision revoking his mandatory supervision and re-crediting 100 days of remission. The applicant had been advised of all of his rights throughout. Because of the existence of those alternative remedies, the court felt that habeas corpus could not lie.

Editorial Note - It would appear that the learned judge has misconstrued the law in this decision. While it is true that habeas corpus is not a substitute for an appeal in criminal cases where there is a full right of appeal to a court of appeal from conviction at the trial level, that principle is not to be extended to deny habeas corpus simply because a prisoner has failed to have access to internal administrative appeals. On the other hand, a failure to access existing internal remedies may be a factor in the court declining to grant habeas corpus in it's discretion. See Morgan v Director of Stoney Mountain Institution (supra) at p618 and 618.1.

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. The original refusal was re-examined by the Board in accordance with the Regulations and at the applicant's request pursuant to paragraph 22(1)(d) of the Parole Regulations following which the original refusal was affirmed. In seeking in this case to set aside the original refusal, the judge was of the view that the applicant sought to quash the wrong decision. The applicant chose to take advantage of the alternative remedy open to him under s22 of the regulations and ought, not, therefore, to be allowed to seek and obtain relief without regard to the latter formal and final decision. The application was dismissed.
	For other grounds see the annotation under s24.4 of the Parole Act.

Editorial Note - In Kenny, Pinard J takes the position that if an appeal has been taken pursuant to regulation 22 to the Appeal Division of the Board in Ottawa, that then any subsequent application to the courts to quash should be to quash the decision of the Appeal division as opposed to the original decision of the Board that was under appeal. Other cases have held that one does not have to resort to the appeal procedure to obtain certiorari to quash and also that whether one has taken an appeal or not is merely a factor to consider in the exercise of the discretion to grant the remedy to quash or not.
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