BACK PREVIOUS SECTION NEXT SECTION

---

SUSPENSION AND REVOCATION
OF PAROLE

---

22. (1) Suspension of parole and apprehension of paroled inmate - A member of the Board or a person designated by the Chairman, when a breach of a term or condition of parole occurs or the Board or person is satisfied that it is necessary or reasonable to do so in order to prevent a breach of any term or condition of parole or to protect society, may, by a warrant in writing signed by the member or designated person,
(a)	suspend any parole other than a parole that has been discharged;
(b)	authorize the apprehension of a paroled inmate; and
(c)	recommit an inmate to custody until the suspension of the inmate's parole is cancelled or the inmate's parole is revoked.
(2) Place of recommitment - The Board or a person designated by the Chairman may, by a warrant, transfer an inmate following his recommitment to custody pursuant to paragraph (1)(c) to a place where the inmate is to be held in custody until the suspension of his parole is cancelled or his parole is revoked.
(3) Review of suspension - The person by whom a warrant is signed pursuant to subsection (1) or any other person designated by the Chairman for the purpose shall forthwith after the recommitment of the paroled inmate named in the warrant review the case and, within fourteen days after the recommitment or such shorter period as may be directed by the Board, either cancel the suspension or refer the case to the Board.
(3.1) Exercise of delegated powers - The Chairman may fix the terms and conditions under which a power may be exercised pursuant to subsection (1), (2) or (3) by a person designated by the Chairman for the purposes of that subsection.
(4) Idem - The Board shall, on the referral to it of the case of a paroled inmate whose parole has been suspended, review the case and cause to be conducted all such inquiries in connection therewith as it considers necessary, and forthwith on completion of such inquiries and its review it shall either cancel the suspension or revoke the parole.
(5) Effect of suspension - An inmate who is in custody by virtue pf this section shall be deemed to be serving his sentence.
[RSC 1970 cP-2 s16; 1976-77 c53 s29; AS 1985 c35 (2nd Supp) s11]
Editorial Note
"Gating"
Gating was a practice where inmates were released on mandatory supervision and then immediately rearrested for the protection of society. The practice was effectively abolished by the Supreme Court of Canada in two cases which were heard together R v Moore; Oag v The Queen (1983) 4 CCC (3d) 216n, 33 CR (3d) 97 (SCC).
In brief reasons the Supreme Court of Canada adopted the judgment of the Ontario Court of Appeal in Moore (1983) 4 CCC (3d) 206, 33 CR (3d) 99, as extended by the BC Court of Appeal in Truscott v Director of Mountain Institution (1983) 4 CCC (3d) 199,33 CR (3d) 121.
Prior to the Supreme Court of Canada decisions, conflicting judgments had been issued by the appeal courts of Alberta on the one hand, and Ontario and BC on the other, as to whether gating was illegal or not.
In Oag v The Queen [1983] 4 WWR 124, 33 CR (3d) 111 (Alta CA); rev'g [1983] 3 WWR 130,24 Alta LR 272 (Alta QB), the Alberta Court of Appeal upheld gating. The court said that s16 of the Parole Act (now s22) cannot be construed as limiting the right of the National Parole Board to rely on information relating to pre-release conduct, where the need to protect society arises. A person on mandatory supervision may be suspended where there is a breach, or an anticipated breach of the conditions of release, or for the protection of society.
One month prior to the Alberta Court of Appeal's decision in Oag, the Ontario Court of Appeal decided Moore. Mr. Justice Dubin writing for the court said that the Board's power to suspend or revoke mandatory supervision can only be invoked "...by reason of the post-release conduct of the inmate while at large as if he were a paroled inmate and on parole" (CR (3d) at p110). A prisoner's pre-release conduct is considered when deciding to grant parole, but if parole is not granted the prisoner is entitled to be released as of right when the mandatory supervision date is reached.
Two days after Oag was decided by the Alberta Court of Appeal, the BC Court of Appeal gave judgment in Truscott v Director of Mountain Institution (1983) 4 CCC (3d) 199, 33 CR (3d) 121 (BCCA); aff'g unreported, March 22, 1983, No. CC830381 (BCSC). The facts in Truscott were that after signing the mandatory supervision certificate Truscott was placed in an escort vehicle, and taken to a gravel pit adjacent to the institution. He was told to get out and as soon as he did a suspension warrant was read to him, and he was taken back to the prison.
The court agreed with the Ontario Court of Appeal's decision in Moore and added that inmates are entitled to release on mandatory supervision in a real sense. Their "release must not be a charade or a sham" (CR (3d) 126).
In place of gating, Parliament has passed legislation which permits the National Parole Board to hold detention hearings prior to the inmate's mandatory release date (see s21.3 of the Parole Act). The inmate is put on notice of the Board's concerns regarding the likelihood of the inmate committing further offences, and is entitled to make representations to address the Board's concerns.
Note that in Oag v The Queen (1987) 33 CCC (3d) 430 (FCA); rev'g (1985) 23 CCC (3d) 20 (FCTD); the court held that the Federal Court Trial Division had jurisdiction to hear Oag's civil suit against The Queen and individual members of the Parole Board for false arrest, false imprisonment, assault and battery, and negligence.
Judicial Consideration -
R v Allen - Unreported, May 4, 1993, No. CC920928, Vancouver, (BCSC) (Butterworths No. 38448)
	- The court dismissed the accused's application for an order that the issuance of a warrant of apprehension and suspension of mandatory supervision pursuant to s22(1) of the Parole Act was contrary to ss7, 9 and 11 (d) of the Chal1er. The court held that the principles expressed by Lamer CJ in R v Morales (1992) 77 CCC (3d) 91 (SCC) upholding the public safety component of s515(10)(b) of the Criminal Code as constitutionally valid applied with equal force to s22(1). The grounds set out in the section for exercising the suspension of parole were sufficiently narrow to satisfy the Chal1er. In this case, the police assessment of the accused and that of his parole officer that he was on drugs and his refusal to submit to urinalysis provided sufficient evidence that the accused was in breach of a special condition of his release and also that it was necessary or reasonable for the parole officer to issue a warrant to prevent breach of a condition of his release having in mind his background of drugs and violence.
Smoker v The Attorney General of British Columbia - Unreported. March 13, 1978, No. X78-0076, Vancouver (SC)
	- Unless there is strict compliance with s16 of the Parole Act the Board is acting without or in excess of jurisdiction. As a result a prisoner charged with escape was acquitted because the warrant of committal after revocation of his parole was issued without jurisdiction the parole service having failed to cancel or refer the suspension to the Board within 14 days. The court on a habeas corpus application relied on the doctrine of "issue estoppel" and decided that the issue had been decided in the criminal trial which was on appeal and was therefore binding and conclusive.
Re Batz - (1978) 4 CR (3d) 289 (Ont HC)
	- Once a warrant for apprehension is issued under s16(1) and the review has taken place under s16(3) and the matter referred to the Board, the warrant of apprehension is not spent on that referral. Even if it was and the detention of an individual is unlawful after the referral, such detention becomes lawful again upon the revocation of parole by the National Parole Board. The court disagreed with R v Robidoux -Unreported, February 14, 1978 (Ont HC).
Munday v The Warden of Mountain Institution - Unreported, June 28th, 1982, No. CA810999 (BCCA)
	- While confirming that the first suspension of the applicant's parole was invalid following R v Gorog [1977] 3 WWA 96 (SCC) and R v Elliott (1976), 34 CANS 117 (BCSC), because of a failure on the part of the Board to comply with the mandatory provisions of section 16(3) and conduct a review of the case within 14 days of recommitment, nevertheless, the court went on to hold that a second suspension of the applicant's mandatory supervision issued while the applicant remained in custody and was not released, even though an order of cancellation indicating he was released was issued, and assuming that the second warrant was issued to cure the careless procedural defects which arose from the issuance of the first warrant, was valid. Prior to the first warrant, the applicant had been charged with impaired driving and it was alleged that he had failed to notify his parole officer of his whereabouts in changing his address within the Lower Mainland region of Vancouver. The first warrant was silent as to the grounds under section 16. The second warrant stated that it was issued "in order to prevent a breach of a term or condition of mandatory supervision." The court held that while it was not clear what breach was involved in relation to the second warrant nevertheless the events leading up to the first apprehension still could constitute grounds which could satisfy the designated officer that the parolee should be returned to custody. The trial judge had held that in the circumstances there was no rational basis for the grounds set out in the second suspension warrant. The Court of Appeal disagreed and pointed out that if that had been the case, the Board would have had the power to cancel the suspension pursuant to section 16(4). It went on to point out that in its view, a judge on a habeas corpus application should not interfere with the assessment made by a designated person unless it can be shown that the assessment was made in bad faith or contrary to the considerations of section 16(1). It held that neither of those considerations were clearly shown in the circumstances. It should be noted that the court did not order the return of the applicant to custody because the Board had issued a new certificate modifying his conditions subsequent to the applicant's release by the trial judge.
McNamara v National Parole Board and Director of the Robson Centre - Unreported, January 8th, 1982, No. CC811394, Vancouver, (BCSC)
	- On an application for habeas corpus where it was claimed that the Board had lost jurisdiction due to a failure to comply wit the mandatory provisions of section 16(3) to the extent that no interview of the prisoner had taken place within the 14 day period, the court dismissed the application holding that the statement by the parole officer in his affidavit that he had "reviewed the case" was sufficient and that it was not for 11 the court to review the steps taken or the extent of the evidence investigated or heard by the person designated by the Board making the preliminary decision whether to cancel or refer under that Section.
Hunchak v National Parole Board and the Director of Mountain Institution - Unreported. June 28th, 1982, No CA811106 (BCCA)
	- It is not necessary under section 16( 1) that the Member of the Board or the person designated specify in the war- rant the grounds upon which it is based. In coming to this decision, the court recalled "the cautionary admonition set out by both Dickson, J. and Pigeon, J in Mal1ineau (No.2) [1980J 1 SCR 602 in respect to applying the doctrine of fairness in actions of prison authorities." The court went on to say, however, that in arriving at the decision to issue the warrant the officer in question must be satisfied that the decision to arrest was necessary or desirable for any of the reasons set out in section 16. But the court went on to apply the maxim omnia praesumuntur esse acta and presumed that the designated person was satisfied that one of the grounds set out in section 16 for suspension existed notwithstanding that that officer had not said so in specific terms in the warrant. The court referred to an unreported decision of Aikins. J. (as he then was), of the BCSC in Dunlop v The Queen- Unreported, October 22nd. 1975, 1457-75, New Westminster (BCSC).
Richards v National Parole Board - (1985) 45 CR (3d) 382; aff'd (1986) 50 CR (3d) 240 (FCA)
	- The applicant was excluded from his post-suspension hearing while the Board heard confidential information. He was only told that the information related to uttering threats. At the end of the hearing the applicant's day parole I was revoked and he lost 6 months of earned remission. The decision was I quashed on the ground that when an inmate is at risk of losing earned remission through revocation, the Board has an obligation to inform the inmate of that risk and the case against him. Here the information given to the applicant was not sufficient to permit him to defend himself.
Henderson v Attorney General of British Columbia et al - Unreported, July 12, 1982, No. CC820760 (BCSC)
	- The parolee's mandatory supervision was suspended and while a review was commenced the parolee was not personally interviewed until after the 14 days expired although the case had been referred to the Board on the 14th day. He brought habeas corpus with certiorari in aid arguing that the "review within the meaning of that term in section 16 was not conducted. It was submitted that the procedural duty of fairness applied at that point. The court dismissed the application holding that the review under section 16 is only an intermediary step and does not finally determine the inmate's status. The principles of natural justice do not require the person conducting the review to inform the inmate of the reasons for the suspension of mandatory supervision and request his response thereto prior to making the determination with 14 days to cancel or refer. While the Board's written policy required an actual interview and was described as "laudable and hopefully followed in most cases; the policy did not have statutory authority to uphold it and was not binding on the designated person.
	See annotation under s16(1)(d) of Re McClal1y- Unreported, September 2, 1988, No. T -964-88 (FCTD).
Quaife v Attorney General of British Columbia et al - Unreported, February 16, 1981, No. CC801191 (BCSC)
	- The petitioner's day parole was suspended on the same day that it would have expired according to the certificate. The petitioner argued that the day parole actually expired at midnight on the day before and claimed that consequently the Board had no jurisdiction or authority to subsequently revoke a day parole that had already expired. The court dismissed the application applying the provisions of section 25(4) of the Limitation Act RSC 1979, cl-23 and found that the day parole expired at midnight of the day specified in the certificate and not the day before. In addition, the court found that the mandatory provisions of section 16 had been complied with.
Morgan v Director of Stony Mountain Institution - (1982), 16 Man R (2d) 58, 30 CR (3d) 125 (Man QB)
	- The applicant's day parole was suspended and subsequently revoked but he was successful in quashing the revocation in the Federal Court of Appeal (see Morgan v National Parole Board annotated under section 20 of the Parole Regulations). The authorities refused to release him taking the position that upon quashing of the warrant of revocation, the warrant of suspension, issued under section 16 was revived and continued in full force pending a new hearing before the National Parole Board. The court rejected this argument and held that the decision of the Federal Court of Appeal quashing the order of revocation did not have the effect of reviving the original warrant of apprehension and suspension because that warrant ceased to have any further force of effect once the applicant had been dealt with pursuant to sections 16 and 20 of the Act.
Editorial Note - The Director of Stony Mountain appealed the decision in Morgan, supra, and the appeal was dismissed [(1983, 1 CCC (3d) 436]. 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.
See also Bango v National Parole Board -Unreported, January 26th, 1982, No. A-669-81 (FCA).
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 breach it. He was not a paroled inmate within s10(1)(e).
Tombs v National Parole Board - Unreported, June 18, 1984 No. T-1194-84 (FCTD)
	- The applicant was released on parole with no condition that he was not to consume alcohol. It was known to the Parole Board prior to his release that he had a problem with alcohol. Apparently his parole officer arrived at his home one day to find him drinking beer and thereupon suspended his parole for the protection of society. His parole was subsequently revoked. He applied for certiorari. It was argued on his behalf that the decision to revoke was tatamount to "gating" in that it was based on information available to the Board prior to his release and the Board having decided to release him with an alcohol problem and with no condition restraining the consumption of alcohol that the Board could then not subsequently revoke on the basis of that very same problem. The application was dismissed the court holding that there was sufficient conduct while on parole of concern to the Board to justify the suspension for the protection of society. This decision is apparently on appeal to the Federal Court of Appeal.
R v Cadeddu and Nunery - (1982),40 OR (2d) 128 (HC)
	- Section 7 of the Canadian Charter of rights and Freedoms which provides among other things that "Everyone has the right to...liberty...and the right not to be deprived thereof except in accordance with the principles of fundamental justice" mandatorily requires that a parolee must be given a hearing in accordance with the principles of fundamental justice when the question of the revocation of his parole is in issue because such a decision is one that may deprive him of his liberty and to revoke without a hearing violates s7 of the Charter.
See also Sango v The National Parole Board, [1984] 1 FC 183 (FCTD -Muldoon, J.) annotated under s19 supra.
Litwack v National Parole Board - (1986) 26 CCC (3d) 65,51 CR (3d) 53 (FCTD)
	- With respect to the imposition of terms or conditions on parole or mandatory supervision and subsequent reconsideration of such terms or conditions with a view to either revoking or continuing them, the Board is subject to s7 of the Charter principles of fundamental justice which include a requirement to not only act in a procedurally fair manner, but also that the decision be in substance reasonable and not patently unreasonable. See annotation under s20 (supra).
Editorial Note - The Crown appealed the decision of Mr. Justice Potts to the Ontario Court of Appeal (now reported at (1983), 4 CCC (3d) 112 (Ont CA)). The day after the appeal was heard but prior to Judgment being rendered the respondent Cadeddu died. The Crown sought to have the Court of Appeal deliver Judgment on the merits because of the importance of the issue but the court held that the appeal had abated and the facts of the case did not bring it within the exception to the general rule that an appeal abates where the person charged or the subject of proceedings has died pending appeal and therefore declined to deal with the matter on the merits.
Henderson v National Parole Board and Warden of Matsqui Institution - Unreported, November 2, 1987, No. CC981788, Vancouver (BCSC)
	- The applicant sought habeas corpus with certiorari in aid to quash the decision revoking his mandatory supervision.
	After the applicant was apprehended and re-committed to custody, he was interviewed by a parole officer pursuant to s16(3) of the Parole Act and s20(1)(c) of the Parole Regulations. The parole officer stated that he had advised the applicant of the reasons for the suspension and the gist of the evidence upon which those reasons were based and that the applicant denied involvement in the alleged activities or any violation of his conditions and during the course of this denial, expressed anger and walked out of the interview saying, "To hell with it. Do whatever you want." This occurred prior to the officer being able to put before the applicant a form which indicated whether or not the applicant wished to have a hearing before the Board or waive such a hearing. The officer said that he had asked the applicant to sign the form and it was at that point when the applicant made the comment alleged. Subsequent to this interview, the parole officer did not cancel the suspension under s16(3) but referred the case to the Board and the Board then revoked the applicant's parole.
	Between the time of the interview by the parole officer and the Board's decision to revoke, there was no communication with the applicant to determine whether or not he wished to apply for a hearing. Apparently, the applicant did not receive the telex communicating to him the decision to revoke. The applicant had availed himself of the appeal under s22 of the Parole Act and that body upheld the original decision of the Parole Board.
	The court concluded that the evidence did not support that the parole officer had unequivocally told the applicant that it was his intention not to cancel the suspension but refer the matter to the Board. The court interpreted the applicant's comment as simply meaning that the applicant would use the most discourteous language and you can either cancel my suspension or you can refer it to the Board but it's for you to decide. The applicant's comment could not be construed as a waiver of his entitlement to a hearing. Furthermore, the application for a hearing does not arise until after the reference to the Board has been made. Before the matter is referred to the Board, the prisoner simply cannot apply for a hearing.
	Furthermore, the fact that the applicant had availed himself of the appeal provisions did not amount to a waiver either. The Appeal Board does not conduct a hearing at which the prisoner is entitled to be present and be heard in person but rather, conducts its proceedings in writing. This is not a substitute for the original hearing before the Board. The court concluded that at common law, there was a denial to the applicant of the opportunity to apply for a hearing.
	The court then went on to consider whether, in light of that decision, the applicant should be restored to mandatory supervision or the suspension restored. The court compared the decision of the Ontario High Court in Re Conroy (1983) 5 CCC (3d) 501 which concluded that once the revocation was quashed the suspension remained in force, with the decision of the Manitoba Court of Appeal in Morgan v The Director of Stony Mountain Institution (1983) 1 CCC (3d) 4; 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.
R v Nunery - (1983), 5 CRR 69 (Ont HC Motions Ct)
	- Parole cannot be revoked without granting the parolee an in-person hearing, as s7 of the Charter of Rights and Freedoms requires fundamental justice in depriving a subject of his liberty, and this embraces the audi alteram partem rule.
Swan v AGBC - (1983) 7 CCC (3d) 130, 35 CR (3d) 135 (sub nom Re Swan and R) (BCSC)
	- Where a parolee breached the reporting conditions of his parole and in the result there were grounds to suspend his parole pursuant to s16 of the Parole Act but the accused is not apprehended pursuant to the Warrant of Suspension and he is then revoked without a hearing before he is arrested, then, within a reasonable period of time after the parolee's arrest, the Board is obliged by virtue of ss7 and 9 of the Canadian Charter of Rights and Freedoms and the common law duty to act fairly, to provide a post-revocation hearing and in the absence of a reasonable or sufficient opportunity given to the parolee to question the decision to revoke his parole at a proper hearing the parolee may become unlawfully detained resulting in a loss of jurisdiction on the part of the Parole Board and entitling a Writ of habeas corpus to issue. Indeed the provisions of the Charter seem to tilt the scales strongly towards the requirements of natural justice rather than just procedural fairness in the post- revocation process and enable the court in exercising its new constitutional mandate to ensure that justice is not only seen to be done but is done according to law by ensuring that the procedure most likely to attain justice is followed. Neither the gratuitous offering of a post-revocation hearing without any statutory basis nor the provision for an internal review is sufficient to meet the standards the Constitution now requires. Consequently, a failure to hold such a hearing post-suspension and prior to revocation will result in the Warrant of apprehension and suspension being invalid as a basis for continued detention and the Warrant of apprehension on revocation, though lawful in the first instance, becomes invalid if there is no proper post- revocation hearing as of right with natural justice safeguards at least equal to the requirements of the regulations of the Parole Act respecting suspension of parole.
See also, Kennedy v National Parole Board -Unreported, August 12, 1985, No. T. 2293-84 (FCTD) which followed the decisions in Cadeddu (supra) and Swan (supra) and held that it was not necessary to quash the revocation when a new hearing was being offered by the National Parole Board, before such new hearing was held
See also Latham v Solicitor General of Canada et at. (1984), 12 CCC (3d) 9 (FCTD) annotated under Regulation, s25 pertaining to the grounds in the suspension warrant and violation report in relation to the subsequent reasons for revocation.
R v Smith - (1988) 68 CR (3d) 92 (Ont HC)
	- At a parole suspension hearing before the Ontario Provincial Parole Board, the applicant requested an adjournment to consult counsel and to arrange for representation before the Board. This request was denied and the applicant's parole revocation confirmed. The applicant sought habeas corpus with certiorari in aid to quash the decision and secure his release.
	At the hearing before the court, it was not contested that there ought to have been an adjournment at the parole hearing and that the applicant ought to have been afforded access to counsel. The respondent had already offered the applicant a hearing with counsel before a reconstituted Board but the applicant had declined to accept that offer. At issue was the appropriate remedy to be awarded by the court.
	The court found that there is no right to counsel in such circumstances before the Parole Board at common law, relying upon Howarth v National Parole Board [1976] SCR 453, 3 NR 391 (SCC) and Fraser v Mudge [1975] 3 All ER 78 (CA).
	However, the court found that s7 of the Charter provides the rights in such circumstances such as a right to an in person hearing (Re Cadeddu and The Queen (1982) 4 CCC (3d) 97 (Ont HC)); to minimum notice of the allegations against the inmate (Re Latham and Solicitor-General of Canada (1984) 12 CCC (3d) 9 (FCTD)); and most importantly, the right to counsel at hearings involving parole revocation (Kennedy v National Parole Service [sic], Unreported, August 12, 1985, FCTD, at p12; and Re Latham, supra, at p20).
	It was held that the Ontario Provincial Parole Board had violated the applicant's s7 Charter rights and committed an important procedural error. However, the court declined to set the applicant at liberty holding that a determination of the merits of the parole revocation should properly take place before the Parole Board. Notwithstanding prevailing legal authority that the warrant of suspension is spent upon the further decision of the Board to revoke and notwithstanding that this court's decision to quash the revocation would therefore normally result in the applicant being put at liberty, nevertheless, the court, using s24 of the Charter ordered that the applicant remain in custody pending a re-hearing to be held expeditiously before a different panel of the Board.
See also R v Smith -Unreported, December 1, 1988, No. 2266/88 (Ont HC) annotated under s25 of the Parole Regulations infra.
Editorial Note - As to the requirements of natural justice generally in the context of disciplinary proceedings the decision of McEachern, CJBC, in the following police disciplinary case, decided before the Charter, should also be noted.
Joplin v Chief Constable, City of Vancouver Police Department et aI - [1983] 2 WWR 52, (BCSC)
	- Police officer, charged with disciplinary offence and facing potential fine of $200 plus blemished record, sought to be represented by legal counsel at hearing. Regulation 18(2) allowed counsel only where potential penalty was much greater. Held: Regulation is ultra vires as a denial of natural justice. Any formal disciplinary proceeding is a serious matter and justice requires entitlement to legal representation.
See also, McGuigan v Chief Superintendent T. Ciunyk -Unreported, December 19, 1984, No. A832009 (BCSC) which followed Joplin (supra) in proceedings involving a National Harbours Board police officer charged with disciplinary offences who had been prohibited counsel at the disciplinary hearing. A decision prohibiting counsel was found to be contrary to principles of natural justice and in excess of jurisdiction and therefore invalid. The chief superintendent was enjoined and restrained from refusing the applicant's right to be represented by legally qualified counsel at his upcoming hearing.
Lennox, Duncan and Lutz v National Parole Board - (1985) 43 CR (3d) 356 (FCTD)
	- Three applicants were on parole and had their parole suspended and were interviewed by parole officers while in custody, requested post-suspension hearings and waived the fourteen day notice requirement in Parole Regulation, s20. The Parole Board did hold hearings at the institutions where the applicants were being held but none of them were given such a hearing at that time. No explanation was put before the court as to why such hearings had not taken place on that date. In the absence of such an explanation on the record or proof to the contrary the court concluded that the hearings could have been held on that date and that by failing to do so the Board had infringed the mandatory provisions of Parole Regulation, s20(2)(a) to hold a hearing ''as soon as practical". The court quashed the suspension decisions on certiorari and indicated that undue delay in connection with the post-suspension hearings was not only contrary to the terms of the Regulations but also to natural justice. The court noted however that this did not necessarily mean that the Board had lost jurisdiction as the procedure in s10(1)(e) was still open to it to use if it decided to do so.
In Re Dumoulin - (1984), 6 CCC (3d) 190 (Ont HC)
	- Following Cadeddu and Nunery, supra, a decision to revoke parole at a hearing held in camera at which the person affected was not invited was quashed. Neither the invitation to make submissions to a parole officer nor the actual written submissions made by the applicant are sufficient to cure the defect. Revocation of parole is a deprivation of freedom or of the qualified liberty right of an individual. The warrant was quashed.
Singer v The Queen - Unreported, December 16, 1983 Montreal No. 36-000631-831 (Que SC)
	- In this case the Quebec Supreme Court held that it did not have jurisdiction to grant habeas corpus with certiorari in aid in circumstances involving the suspension of mandatory supervision pursuant to s16 of the Parole Act and held that the questioning of the action on the part of the Parole Board would be better left to the Federal Court of Canada under s18 as parliament clearly intended it to be.
Editorial Note - The question of the ambit of habeas corpus and whether or not one can use certiorari in aid of habeas corpus in Provincial Superior Courts notwithstanding the provisions of s23 (formerly s18) giving exclusive jurisdiction to the Trial Division over certiorari in relation to federal board or tribunals has now been decided by the Supreme Court of Canada in three cases, Cardinal and Oswald v Director of Kent Institution [1982],3 WWR 593 (BCCA); aff'd (1986) 23 CCC (3d) 118, 49 CR (3d) 35, [1986] 1 WWR 577 (SCC); Re Morin and Yeomans (1983), 1 CCC (3d) 438 (Que CA); rev'd (1986) 23 CCC (3d) 132 (SCC); Re Miller and The Queen (1983),70 CCC (3d) 129 (Ont CA); aff'd (1986) 23 CCC (3d) 97 (SCC), all of which were heard together in the Supreme Court of Canada on October 11 and 12, 1984. Another case on this issue is:
Riches v The Warden of Leclerc Institution - Unreported, June 29, 1984, No. 36-000194- 848 (Que SC)
	- Which held that s18 of the Federal Court Act cannot be interpreted so as to oust the jurisdiction of the Superior Courts of the Provinces to entertain applications for writs of habeas corpus, even if in certain instances a review of an administrative decision may be required, when the main issue is the determination of whether or not continued detention is legal or illegal.
Re Martens and The Queen - (1984), 8 CCC (3d) 336,35 CR (3d) 149 (BCSC)
	- A parolee, failed to report, a warrant was issued for his apprehension and then his parole was revoked before he was apprehended. After apprehension he was given a post-revocation hearing in which the Board resolved not to change the revocation of parole. This decision was upheld on re-examination of the Board's decision. The written reasons on re-examination indicated that it was due to failing to report. However, they also indicated that there were other factors besides sloppy reporting. In addition, at the original hearing the parole officer was present in the room with Board members in the absence of the parolee and his wife for a period of ten minutes prior to the hearing commencing. On an application for habeas corpus with certiorari in aid it was held that although the Board was not required under the statutory scheme to hold a post-revocation hearing it had done so and in so doing it was under duty to exercise its powers in accordance with the principles of fundamental justice following R v. Swan and R v Lowe. One of the requirements of fundamental justice was that the petitioner parolee should have been present in person throughout the hearing (following Caddeddu, Nunery and Couperthwaite). The exclusion of the petitioner parolee from the hearing together with the implication in the written reasons upon re-examination that there were some other considerations which were not revealed to the petitioner and which he did not have an opportunity to answer led the court to the conclusion that there had been a significant departure from the principles of fundamental justice. The court reserved decision and ordered a new post-revocation hearing at which the petitioner was to be present in person throughout and at which he was to be given a full opportunity to understand and answer all matters of concern to the Board. If there was unwarranted or unreasonable delay in convening and completing the new post-revocation hearing then the writ of habeas corpus would issue.
Ziatas v National Parole Board - (1983), 70 CCC (2d) 381 (FCTD)
	- Once a day parole has been suspended under s16 and referred to the Board under subs (3) the Board is obliged to proceed in accordance with the provisions of Parole Regulation, ss20 and 20.1 and conduct a hearing. It cannot terminate a day parole without a hearing once a suspension has occurred under s16, unless it cancels the suspension and then exercises its power under s10(2).
Re Rowling and The Queen - (1979), 45 CCC (2d) 478 (Ont HC)
	- The provisions of s16(3) are mandatory and require the person signing the warrant issued under subs(1) or any other person designated to review the suspended parolee's case forthwith after recommitment and within fourteen days either cancel the suspension or refer the case to the Board. A failure to conduct such a review results in a loss of jurisdiction and habeas corpus will be issued.
Editorial Note - For further decisions on the requirements of "natural justice" in regards to the entitlement to counsel. See: Re Husted and Ridley and The Queen (1981), 58 CCC (2d) 156 and also see Re Pollard and Young, Unreported, May 8, 1980, Newfoundland Supreme Court, annotated under s37(3) of the Penitentiary Act (infra) and Penitentiary Service Regulation 39 (infra) in relation to prison guards. See also Howard (infra) at p 944.
Note - For cases dealing with the procedure at hearings under section 16 (now s22) see the cases annotated under section 25 of the Regulations.
Prior to the coming into force of the Revised Statutes, 1970, s16 was s12 of SC 1958, c38, as re-enacted by 1968-69, c38, s101.
The following cases were decided under former s12:
Ex parte Beauchamp - [1970] 3 OR 607 (HC)
	- Where an inmate whose parole had been suspended pursuant to s12 (now s16) of the Parole Act was held in custody for 52 days before the suspension of his parole was cancelled, but informed neither of the reasons for the suspension of his parole nor whether the provisions of subsections (3) and (4) of s12 were being complied with, the matter had apparently been dealt with fairly and in accordance with the provisions of the Parole Act. The time required for review by the Board depended on the circumstances of each case.
Editorial Note - Although a decision to revoke parole is within the Parole Board's discretion as a purely administrative matter, the Board must act fairly in accordance with the principles of proper justice. Fairness demands a consideration of an inmate's side of the story before revoking his parole. Mandamus, but not habeas corpus, might be an appropriate remedy where persons in authority were not exercising their powers fairly and were not applying their minds to a fair analysis of the case.
Howarth v National Parole Board - [1976] 1 SCR 453, 3 NR 391, 50 DLR (3d) 349, 18 CCC (2d) 385, affirming (1973),14 CCC (2d) 145 (FCA)
	- The decision under this section to revoke parole is purely administrative and not in any way a judicial or quasi-judicial matter or determination. As such, it is not subject to review under s28 of the Federal Court Act, RSC 1970 (2nd Supp), c10.
Editorial Note - Section 25 (formerly s20) of the Parole Regulations now specifically provides, on application by the inmate, for a post suspension hearing before revocation takes place. Quaere: Does this permit a change in the characterization of the Board's function from that of a purely administrative one to a quasi-judicial one so as to subject the Board to review under s28? In the opinion of the Federal Court of Appeal in Meldrum v National Parole Board, supra, it does not.
In light of the decisions of the Ontario High Court in R v Cadeddu and R v Nunery to the effect that s7 of the Charter requires a hearing where revocation is in issue, it may be that both Howarth v National Parole Board and Meldrum v National Parole Board might be decided differently.
Re McKinnon and The Queen - (1974) 24 CCC (2d) 536 (NBSC -App Div)
	- The magistrate remanding the inmate in custody under this section has no discretion, exercises no judicial function and acts in a purely administrative or ministerial capacity. Consequently, relief by way of certiorari to quash such a decision is not available.
Ex parte Carlson - (1975) 26 CCC (2d) 65 (Ont CA)
	- This section applies to both day parole and general parole.
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.
Mitchell v The Queen - [1976] 2 SCR 570,6 NR 389, [1976] 1 WWR 577, 24 CCC (2d) 241, 61 DLR (3d) 77
	- The requirement in the Canadian Bill of Rights, s2(c)(i) that a person be "informed promptly of the reason for his arrest or detention" is met, under this section, when the prisoner is told that his parole has been suspended or revoked. It is not necessary to provide the prisoner with the reasons for the arrest, suspension and subsequent revocation.
Skitt v Solicitor General of Canada, et al - [1976] 1 FC 556, 29 CCC (2d) 392 (TD)
	- This section applies to day parole.
R v Lewis - [1976] 2 WWR 605 (BCCA)
	- There is no requirement that a warrant issued by authority of this section show the reason or reasons for suspension and apprehension. The decision to suspend is an administrative function. It is the warrant of committal and not the warrant issued under this section which must be shown to be defective on an application for habeas corpus with certiorari in aid by an inmate recommitted after suspension of mandatory supervision, if the application is to be successful.
R v Elliott - (1976) 34 CANS 117 (BCSC)
	- The Parole Board and its officers must carry out the mandatory duties prescribed by Parliament and a failure to do so will result in their acting outside the law and any subsequent determination will be null and void. Consequently, a failure to comply with the provisions of s16(3) to conduct a review and refer the case to the Board within 14 days will result in the Board acting in excess of its jurisdiction in purporting to revoke the parole subsequently, and the prisoner will be entitled to release on habeas corpus with certiorari in aid. (Editorial Note -The court refused to follow the majority judgment of the Manitoba Court of Appeal in R v Gorog, [1975] 4 WWR 191,23 CCC (2d) 225, relying instead on the dissenting judgment of Matas J.A. An appeal of the Gorog case to the Supreme Court of Canada was allowed by consent of both parties. This line of reasoning has since been affirmed by the British Columbia Court of Appeal in Munday v The Warden of Mountain Institution, supra.)
Oag v The Queen et al - (1987) 33 CCC (3d) 430 (FCA)
	- The body of federal law set out in this statute falls within the legislative competence of Parliament over "criminal law" found in s91(27) of the Constitution Act, 1867, and its like competence over the "establishment, maintenance and management of penitentiaries" found in s91(28) of that Act.
Ex parte Collins - (1976) 30 CCC (2d) 460 (Ont HC)
	- The steps set out in this section are not conditions precedent to the exercise of the Parole Board's discretion to revoke parole.
R Vidlin and The Queen - Unreported, December 16, 1992, No. T -2345-92 (FCTD) (Butterworths No. 37945)
	- While s16(5) provides that an inmate who is in custody by virtue of s16 (on suspension) shall be deemed to be serving his sentence, it does not follow that the sentence of a person whose parole is suspended but is not apprehended shall be deemed not to be running. Consequently, a prisoner who has his mandatory supervision suspended but is not apprehended and in custody continues to serve his sentence. By virtue of s13 the term of imprisonment of a paroled inmate is deemed to continue in force until the expiration thereof according to the law so long as the parole remains unrevoked and unforfeited.
Bennett v National Parole Board - (1975) 26 CCC (2d) 65 (Ont CA)
	- The applicant challenged the Board's revocation of his day parole on the grounds that it had no evidence upon which to base the decision. The terms of the applicant's parole were that he abstain from drug use and accept treatment and counselling. The evidence before the Board was that the applicant had lost the support of the staff at the treatment center and halfway house because of his apparent use of drugs. The court upheld the revocation of day parole. It held that the conditions imposed on the applicant required him to submit willingly, constantly and wholeheartedly to the program. It was the opinion of staff at the treatment center that treatment in this case was a waste of time and resources. In the circumstances, the Board was entitled to rely on soft, circumstantial evidence in reaching its conclusion. In this case, the recommendation had to be based on a collective opinion of staff rather than findings of fact in the traditional sense.
Beasley v National Parole Board - Unreported, January 29, 1992, No. T -3209-91 (FCTD) (Butterworths No. 36959)
	- Applicant sought order to prevent Parole Board from holding a hearing to determine status of his parole. Applicant had been released on full parole, which was suspended following his arrest for theft. He was put in jail and did not apply for bail. Under s22(3) Parole Act parole officer decided to cancel the parole suspension. Prisoner then pleaded guilty to theft and was sentenced to eight months. An employee of the Parole Board then noticed that there had been no change to applicant's parole status as a result of the theft conviction. Board notified applicant of hearing to revoke his parole. Applicant argued that Board no longer had jurisdiction to revoke parole since its suspension had been cancelled. He argued that the Parole Act contained two ways of dealing with a case like this: 1) suspension of parole which authorized the taking of the individual back into custody, followed by a review as to whether the parole suspension should be continued or cancelled and if the former, then a post-suspension hearing by the Board for the purpose of deciding whether the parole should be revoked or suspended; 2) a parole revocation hearing, when the individual is not in custody, followed by a post-revocation hearing to either ratify or annul the revocation if the individual is subsequently found and taken into custody. He argued that the Board cannot suspend parole, then cancel the suspension and subsequently hold a revocation hearing on the basis of the same facts as to which the suspension was originally imposed. The court rejected the applicant's argument. The parole suspension and the proposed revocation did not relate to the same facts. The parole suspension was based on the applicant having been charged with the criminal offence of theft. The cancellation of the suspension occurred after an interview with the applicant but before the charge was dealt with by the court. The proposed revocation hearing was based on the fact that the applicant was convicted of the charge. The proposed revocation hearing was not an attempt to alter the earlier decision; it was an independent proceeding.
Devries v National Parole Board - Unreported, April 28, 1993, No. CC930014, Vancouver (BCSC) (Butterworths No. 38540)
	- Applicant was released on mandatory supervision on July 20, 1992 and rearrested on September 15 after charges were laid against him for possession of a restricted weapon. The Board held a hearing at which time it revoked mandatory supervision and refused recredit of remission, on the ground that the applicant had been charged with a serious new offence. The Crown stayed the new charges "because the evidence concerning the search of the applicant's vehicle may violate the Charter". At a second hearing, the Board (aware of the stay) upheld the revocation on the grounds that the members found the applicant's explanation of his involvement in the alleged criminal proceedings "unbelievable". Of the three Board members, one had sat at the first hearing. The applicant argued that the second hearing was a "re-examination" under s22(3) Parole Act and as such, it had to be conducted by members who had not participated in the first hearing: s22(3)(a). The court quashed the Board's order. It held that the applicant was entitled to a re-examination of the original decision for the following reasons: 1) The second hearing was a re-examination hearing and as such, did not meet the mandatory statutory requirements under s22(3) (a); 2) There was a reasonable apprehension of bias because a member who was party to the first decision sat at the second hearing; and 3) In order for the Board to consider evidence which the Crown decided might have been excluded under the Charter, (the basis for the stay) the Board should have proceeded on the basis that there was a Charter breach. The next step would be to determine whether or not the admission of the evidence would bring the administration of justice into disrepute.
Re Grabina and The Queen - (1977) 34 CCC (2d) 52 (Ont HC)
	- This section does not in any way limit the absolute discretionary power given to the Parole Board by ss6 and 10(1)(e) to revoke parole. Even though the appropriate parole 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 Carlson - Unreported, September 14, 1984, No. XO1150 (BCSC)
	- Statements made by an accused/parolee at a post-suspension hearing, notwithstanding a warning of a right to an assistant and a right not to incriminate one's self before the Board, still amounted to a "witness', "testifying" in some other "proceeding" and therefore If such evidence cannot be led on a subsequent criminal charge as that would violate s13 of the Charter.
See also McClany v The Queen (Correctional Service of Canada) -Unreported, April 27, 1992, No. CR 91-01-11462, Winnipeg (Man QB) under Parole Act s20.
TOP