Lenard John Howarth (Applicant)
v.
The National Parole Board (Respondent)
Court, of Appeal, Jackett C.J., Pratte and Thur-
low JJ.—Ottawa, October 17, 18 and 19, 1973.
Judicial review—Parole—Order revoking parole—An
administrative order not required to be made on quasi-judi
cial basis—Parole Act, R.S.C. 1970, c. P-2, s. 16(4); Feder
al Court Act, s. 28.
The Federal Court has no jurisdiction under section 28 of
the Federal Court Act to review and set aside an order of
the National Parole Board revoking a parole. A decision of
the National Parole Board granting or revoking a parole is
"an order of an administrative nature not required to be
made on a judicial or quasi-judicial basis" within the mean
ing of section 28. While the Board's power to revoke a
parole can only be exercised in the manner laid down by
section 16 of the Parole Act, R.S.C. 1970, c. P-2, and only
upon completion of such inquiries as the Board considers
necessary, the procedure required by section 16(4) does not
constitute a quasi-judicial basis for the revocation decision
since section 16(4) does not of necessity require that the
person affected by the decision be informed of the facts
against him and given an opportunity to reply.
Ex parte McCaud [1965] 1 C.C.C. 168, discussed.
JUDICIAL review.
COUNSEL:
R. R. Price for applicant.
A. C. Pennington and R. G. Vincent for
respondent.
SOLICITORS:
R. R. Price, Kingston, for applicant.
Deputy Attorney General of Canada for
respondent.
JACKETT CJ. (orally)—This is an application
to quash a proceeding under section 28 of the
Federal Court Act by which it is sought to have
this Court set aside an order of the National
Parole Board, which order "purported to revoke
a parole granted to the applicant". The applica
tion to quash is based on the contention that this
Court has no jurisdiction to grant the relief
sought.
There is no material before the Court. The
respondent bases its application exclusively on
its contention that a decision by it under the
Parole Act to revoke parole is not a decision to
which section 28 of the Federal Court Act
applies.
Section 28(1) reads as follows:
28. (1) Notwithstanding section 18 or the provisions of
any other Act, the Court of Appeal has jurisdiction to hear
and determine an application to review and set aside a
decision or order, other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made by or in the course of
proceedings before a federal board, commission or other
tribunal, upon the ground that the board, commission or
tribunal
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its
jurisdiction;
(b) erred in law in making its decision or order, whether
or not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or
without regard for the material before it.
It is common ground that if a decision under
the Parole Act to revoke parole is
... a decision or order of an administrative nature not
required by law to be made on a judicial or quasi-judicial
basis....
this Court has no jurisdiction to grant the relief
sought by the section 28 proceeding and the
application to quash should be granted and that,
otherwise, this Court has such jurisdiction and
the application to quash should be dismissed.
The relevant provisions of the Parole Act
read as follows:
2. In this Act
"Board" means the National Parole Board established by
this Act;
"inmate" means a person who is under a sentence of impris
onment imposed pursuant to an Act of the Parliament of
Canada or imposed for criminal contempt of court, but
does not include a child within the meaning of the Juvenile
Delinquents Act who is under sentence of imprisonment
for an offence known as a delinquency;
"parole" means authority granted under this Act to an
inmate to be at large during his term of imprisonment;
3. (1) There shall be a board, to be known as the National
Parole Board, consisting of not less than three and not more
than nine members to be appointed by the Governor in
Council to hold office during good behaviour for a period
not exceeding ten years.
(6) The Board may, with the approval of the Governor in
Council, make rules for the conduct of its proceedings and
the performance of its duties and functions under this Act.'
6. Subject to this Act and the Prisons and Reformatories
Act, the Board has exclusive jurisdiction and absolute dis
cretion to grant, refuse to grant or revoke parole.
10. (1) The Board may
(a) grant parole to an inmate, subject to any terms or
conditions it considers desirable, if the Board considers
that
(i) in the case of a grant of parole other than day
parole, the inmate has derived the maximum benefit
from imprisonment,
(ii) the reform and rehabilitation of the inmate will be
aided by the grant of parole, and
(iii) the release of the inmate on parole would not
constitute an undue risk to society;
(e) in its discretion, revoke the parole of any paroled
inmate other than a paroled inmate to whom discharge
from parole has been granted, or revoke the parole of any
person who is in custody pursuant to a warrant issued
under section 16 notwithstanding that his sentence has
expired.
11. The Board, in considering whether parole should be
granted or revoked, is not required to grant a personal
interview to the inmate or to any person on his behalf.
13. (1) The term of imprisonment of a paroled inmate
shall, while the parole remains unrevoked and unforfeited,
be deemed to continue in force until the expiration thereof
according to law, ... .
(2) Until a parole is revoked, forfeited or suspended, .. .
the inmate is not liable to be imprisoned by reason of his
sentence, and he shall be allowed to go and remain at large
according to the terms and conditions of the parole and
subject to the provisions of this Act.
16. (1) A member of the Board or any person designated
by the Board may, by a warrant in writing signed by him,
suspend any parole, other than a parole that has been
discharged, and authorize the apprehension of a paroled
inmate whenever he is satisfied that the arrest of the inmate
is necessary or desirable in order to prevent a breach of any
term or condition of the parole or for the rehabilitation of
the inmate or the protection of society.
(2) A paroled inmate apprehended under a warrant issued
under this section shall be brought as soon as conveniently
may be before a magistrate, and the magistrate shall remand
the inmate in custody until the suspension of his parole is
cancelled or his parole is revoked or forfeited.
(3) The person by whom a warrant is signed pursuant to
subsection (1) or any other person designated by the Board
for the purpose shall forthwith after a remand by a magis
trate of the paroled inmate named therein review the case
and, within fourteen days from the time of such remand,
either cancel the suspension of his parole or refer the case
to the Board.
(4) The Board shall, upon 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 forth
with upon completion of such inquiries and its review it
shall either cancel the suspension or revoke the parole.
(5) An inmate who is in custody by virtue of this section
shall be deemed to be serving his sentence.
In summary in so far as seems relevant for
present purposes, this Act establishes the
National Parole Board with jurisdiction to grant
parole to persons under sentence of imprison
ment under federal statutes—i.e., to grant to
such a person "authority ... to be at large
during his term of imprisonment"—and to
revoke any such parole. Section 6 confers that
jurisdiction. Section 10 spells out the Board's
authority to grant and revoke parole. Before
granting parole, the Board must consider that
the inmate has derived the maximum benefit
from imprisonment, that the reform and
rehabilitation of the inmate will be aided by the
grant of parole and that the release of the
inmate would not constitute an undue risk to
society. With irrelevant exceptions, the Board
may, "in its discretion", revoke the parole of
any "paroled inmate" and it may also revoke
the parole of any "person" whose sentence has
expired while he was in custody as a result of
his parole having been suspended while he was
a "paroled inmate".
The question that has to be decided on this
application, as already indicated, is whether a
decision by the Parole Board to revoke parole is
. a decision or order of an administrative nature not
required by law to be made on a judicial or quasi-judicial
basis....
It is settled that an order revoking parole is of
an administrative nature. (See Ex p. McCaud
[1965] 1 C.C.C. 168.) A person who is under
sentence of imprisonment has, by due process
of law, lost the liberty to go where he wants and
has become an inmate of a prison where it is a
matter for administrative decision as to what
part of the prison he shall inhabit at any particu
lar time. The Parole Act has created a possibili
ty that he may be allowed to be "at large"
during some part of his term of imprisonment
and has given the Parole Board "an absolute
discretion" to grant such authority and, when
granted, to revoke it. A decision to grant such
authority is neither a legislative decision nor a
judicial decision. It is an administrative deci
sion. The question of difficulty that has to be
decided on this application is not whether such
a decision is an administrative decision but
whether it must be made on a "judicial or quasi-
judicial basis". Furthermore, there can, in my
view, be no suggestion that the Board must
make its decisions on a "judicial" basis. In the
result, therefore, the sole question of difficulty
to be decided on this application is whether the
Board is required to make its decisions revoking
parole on a "quasi-judicial" basis.
While there are no detailed provisions in the
Parole Act or in the rules made thereunder
concerning the procedure, if any, to be followed
by the Parole Board before making an order
revoking parole, section 16 of the Act does lay
down steps that, in my view, are conditions
precedent to the making of any such order.
Those steps are as follows:
1. Section 16(1) authorizes a member of the
Board (or a person designated by the Board)
to suspend parole and to authorize apprehen
sion of a paroled inmate whenever he is satis
fied that the "arrest" of the inmate is neces
sary or desirable
(a) in order to prevent a breach of any term
or condition of the parole,
(b) for the rehabilitation of the inmate., or
(c) for the protection of society.
(A paroled inmate apprehended pursuant to
authority so given must be brought before a
magistrate and be, by him, remanded in cus
tody until the suspension of his parole is
cancelled or his parole is revoked or forfeited
(section 16(2)).)
2. The person who suspended the parole (or
some other designated person) must, forth
with after the paroled inmate is arrested,
either cancel the suspension or refer the case
to the Board (section 16(3)).
3. Upon the referral to it of such a case, the
Board is required by section 16(4) to "cause
to be conducted all such inquiries in connec
tion therewith as it considers necessary".
4. Finally, the Board is required, by section
16(4), to cancel the suspension or revoke the
parole but only "upon completion of such
inquiries".
In my view, the Parole Board's power to
revoke parole can only be exercised in the
manner laid down by section 16 and after all the
steps required by that section have been taken. 2
In particular, the Board can only revoke parole
"upon completion" of "such inquiries in con
nection therewith as it considers necessary".
This requires that the Board itself, in each case
of suspension referred to it under section 16(3),
make a decision as to what inquiries are neces
sary in connection with the question whether
such suspension should be cancelled or the
parole revoked. 3 Until such time as such a deci
sion has been made and the inquiries that the
Board decides are necessary have been com
pleted, the Board has no authority to revoke the
parole and any purported revocation made
before those conditions are satisfied is, I should
have thought, voidable, at the suit of the paroled
inmate, as of the time that it was made. (See
Durayappah v. Fernando [1967] 2 A.C. 337, per
Lord Upjohn at page 354.)
If that view is correct, the procedure whereby
a purported revocation of parole may be
attacked is either a section 28 application or
appropriate proceedings in the Trial Division
depending upon whether the procedures
required by section 16(4) constitute a quasi-
judicial basis for the revocation decision or
necessitate no more than a purely administrative
basis.
In my view, section 16(4) does not require a
quasi-judicial basis. A decision-making basis is
not required to be quasi-judicial in my view
unless it, of necessity, involves, first, com
municating to the person affected, in some
manner, the facts upon which action against him
is contemplated, and, second, giving him a fair
opportunity to answer those facts. Section 16(4)
does not impose any such requirement as a
condition to a revocation order. Indeed it nega
tives it. What is required is "such inquiries" as
the Board considers necessary. Normally, I
have no doubt, a board, acting in a responsible
way, as it must do, would cause to be carried
out an investigation that would include
(a) communicating to the paroled inmate
what has been said against him in some
appropriate manner, and
(b) giving him a reasonable opportunity to
make his answer thereto.
That is the obvious course to follow to get at the
facts in the normal case and to minimize any
feeling of injustice. However, there may be, and
probably are, cases where that is not a possible
course or where it is not wise to take that
course. Whether or not it is to be followed in
any particular case is left by the statute to the
wisdom of the Board. That being so, it cannot
be said that a revocation decision is "required
by law to be made on a judicial or quasi-judicial
basis". My conclusion is, therefore, that this
Court has no jurisdiction to set aside such a
decision under section 28 of the Federal Court
Act.
My analysis of the provisions of the Parole
Act dealing with revocation of parole has
brought me to the same result concerning the
claim of a paroled inmate to a right to a "hear-
ing" as that reached in Ex p. McCaud by
Spence J. and by the Supreme Court of Canada
([1965] 1 C.C.C. 168) where, it would appear,
reliance was only placed on the Bill of Rights
for a right to a hearing. It is not, therefore,
necessary for me to reach a conclusion as to
whether that decision is authority for the propo
sition that the relevant provisions of the Parole
Act, quite apart from the Bill of Rights, do not,
when interpreted in accordance with the
authorities in relation to such matters, confer on
a paroled inmate a right to a reasonable oppor
tunity to answer what is alleged against him
before his parole is revoked.
I am of opinion that the application to quash
should be granted.
* * *
PRATTE J. concurred.
* * *
THURLOW J. (orally)—The question raised by
this motion to quash is whether the order of the
National Parole Board revoking the parole of
the applicant is an order "of an administrative
nature not required by law to be made on a
judicial or quasi-judicial basis" within the mean
ing of section 28 of the Federal Court Act.
If the matter were unaffected by authority I
might have reached the conclusion', on consid
eration of the scheme and provisions of the
Parole Act, that at least in cases in which the
basis for the Board's conclusion that valid rea
sons for revocation exist, is alleged or suspected
misconduct of the paroled inmate in relation to
his parole, the minimum standard of fairness to
which an inquiry, the result of which might lead
to the exercise of the power to revoke, ought to
conform would involve some sort of reasonable
opportunity for the paroled inmate to state his
position with respect to the alleged or suspected
misconduct. The right to such an opportunity is,
as I understand the law, a feature that is
common to what has to be done on a quasi-judi
cial basis as well as to what has to be done on a
judicial basis, though the sort of opportunity to
be afforded is not necessarily the same for both.
The question whether such an opportunity
must be afforded to a paroled inmate before
revocation of his parole, however, appears to
me to have been raised and to have been
resolved contrary to the applicant's contention
by the judgment of the Supreme Court in Ex p.
McCaud [1965] 1 C.C.C. 168. There Spence J.
said [at page 169]:
It is the complaint of the applicant that he was never
informed of the reason why his parole was revoked and that
he was given no opportunity to be present at a hearing and
to oppose the revocation thereof. The applicant pleads the
Canadian Bill of Rights, 1960 (Can.), c. 44, and particularly,
2(e) thereof.
In my view, the provisions of s. 2(e) of the Canadian Bill
of Rights do not apply to the question of the revocation of
the applicant's parole under the provisions of the Parole
Act. Section 8(d) of the Parole Act, 1958 (Can.), c. 38,
provides 'that "the Board may ... revoke parole in its
discretion" (the italics are my own), Section 11 of the said
Parole Act provides that the "sentence of a paroled inmate
shall, while the parole remains unrevoked and unforfeited,
be deemed to continue in force until the expiration thereof
according to law" and therefore when the applicant had his
parole revoked he was under sentence which was continued
in force. The question of whether that sentence must be
served in a penal institution or may be served while released
from the institution and subject to the conditions of parole is
altogether a decision within the discretion of the Parole
Board as an administrative matter and is not in any way a
judicial determination. In fact, s. 9 of the Parole Act
provides:
9. The Board, in considering whether parole should be
granted or revoked, is not required to grant a personal
interview to the inmate or to any person on his behalf.
On appeal, Cartwright J. (as he then was) speak
ing for the Court said [see page 170]:
With regard to the appellant's argument based on the Bill
of Rights we agree with the reasons of Spence J.
Counsel for the applicant sought to distin
guish the McCaud case on two grounds, (1) that
section 16(1) of the Parole Act (formerly sec
tion 12(1)) has since been amended so as to add
new or additional reasons for suspension and
thereafter for revocation of parole and that this
calls for consideration of the question de novo
on the provision as amended, and (2) that de
velopments in the law since that case was decid
ed show that there may be two stages in such an
administrative procedure, that is to say, ascer-
tainment of the facts, at which stage the audi
alteram partem principle should be applied and
thereafter the assessment stage where it would
not necessarily apply, and that all that was dealt
with in the McCaud case was whether section
2(e) of the Canadian Bill of Rights applied to
afford the paroled inmate a right to be heard.
With respect to the first of these submissions
I do not regard the changes in section 16(1) as
having made any difference which would affect
the nature of the inquiries required to be made
before a parole is revoked.
On the second point it may be noted that
McCaud's complaint, as opposed to the legal
foundation for it, as set out in the reasons of
Spence J., was "that he was never informed of
the reason why his parole was revoked and that
he was given no opportunity to be present at a
hearing and to oppose the revocation thereof".
It appears to me, therefore, that the substance
of the question raised on this motion was before
the Supreme Court in the McCaud case and was
there decided.
It follows, in my opinion, that the section 28
application is not within the jurisdiction of the
Court and must be quashed.
JACKETT C .J.:
So far as we are aware no rules have been made under
section 3(6) for the conduct of the Board's proceedings.
2 The double barrelled nature of section 10(1)(e) might, on
a first reading, suggest otherwise. Further consideration,
however, will show that it contemplates revocation in the
case of (a) a paroled inmate, or (b) a person who was
arrested under section 16 while he was a paroled inmate.
The importance of this decision is indicated by the fact
that it must be made by the Board itself and cannot be made
by a single member or some designated person by whom
parole may be suspended. Compare section 16(4) with sec
tion 16(1).
THURLOw J.:
' Compare Pennell J. in Ex p. Beauchamp [1970] 3 O.R.
607 and Martin J.A. in Ex p. Marcotte (1973) 13 C.C.C. (2d)
114.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.