T-4363-75
Paul Ernest Lambert (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Dubé J.—Ottawa, January 20 and
22, 1976.
Imprisonment—Application to strike statement of claim—
Original sentence of 5 years Mandatory supervision—Man-
datory supervision suspended and returned to prison
Released again on mandatory supervision—Seeking declara
tion that original sentence satisfied—Whether statement of
claim vague and unanswerable Whether breach of Parole Act
alleged—Whether Court prevented from granting relief—
Parole Act, R.S.C. 1970, c. P-2, ss. 6, 15(1),(2), 16(1),(2),
20(1), 23 Penitentiary Act, R.S.C. 1970, c. P-6, ss. 22(1),
24(1) Federal Court Rule 419.
Plaintiff was released on mandatory supervision having
served 41 months of a five-year term. His mandatory supervi
sion was suspended November 15, 1974, and he was returned to
prison. On September 11, 1975, he was released again, subject
to mandatory supervision until June 14, 1976. He sought a
declaration that the original sentence of August 4, 1970, had
been satisfied as of August 4, 1975. Defendant brought a
motion to strike out the statement of claim on the grounds (1)
that the statement of claim is vague and unanswerable; (2) that
it does not allege a breach of the Parole Act; and (3) that the
Court is prevented by the Parole Act from granting the relief
sought.
Held, striking out the statement of claim, the action is
dismissed. (1) While deficiencies create difficulty in drafting a
defence, they are not fatal. (2) Plaintiff alleges being credited
with 578 days remission. Section 20 of the Parole Act provides,
upon revocation of parole, for recommittal to serve the unex-
pired portion, including remission and earned remission. Plain
tiff has not alleged that June 14, 1976 is not in accord with this
section. The August 4 date ignores all the events alleged by
plaintiff. And, section 15(2) provides that section 20 applies to
an inmate under mandatory supervision as though on parole;
the Parole Board had full authority over plaintiff. (3) Plaintiff's
counsel submitted that there had been a breach of natural
justice, implying that this Court should review and set aside the
Board's decision. Such a function falls under the jurisdiction of
the Court of Appeal under section 28 if the decision is other
than administrative. Finally, the Attorney General of Canada,
and not the Queen, is the proper party.
Howarth v. National Parole Board (1975) 18 C.C.C. (2d)
385 and "B" v. Department of Manpower and Immigra
tion [1975] F.C. 602, followed.
APPLICATION.
COUNSEL:
K. E. Cartwright for plaintiff.
P. J. Evraire for defendant.
SOLICITORS:
Cartwright and Cartwright, Kingston, for
plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
Dust J.: This is an application pursuant to Rule
419 of the Federal Court Rules for an order
striking out the statement of claim on the ground
that it discloses no reasonable cause of action.
In his statement of claim, plaintiff states that on
August 4, 1970 he was sentenced to five years in
penitentiary for robbery. On January 2, 1974,
having served forty one months of his sentence he
was released under mandatory supervision. On
November 15, 1974, his mandatory supervision
was suspended and he was returned to Kingston
Penitentiary because of mandatory parole viola
tions. He denies the alleged violations and says he
was given no opportunity to have counsel. He was
released on September 11, 1975, and advised that
he would be subject to mandatory supervision until
June 14, 1976.
He therefore seeks a "declaration that his origi
nal sentence of 5 years, assessed on August 4th,
1970, has been satisfied, as of August 4th, 1975, or
such other order as this Court may deem just".
The above facts must be accepted as true and
provable for the purposes of this case. The discre
tion to strike a statement of claim should be
exercised only in clear cases where it is plain that
the plaintiff could not possibly succeed.
The defendant attacks the statement of claim on
three grounds: (1) that it is vague and unanswer
able; (2) it does not allege any breach of the
Parole Act; (3) the Court is prevented by the
Parole Act from granting the relief requested.
In his statement of claim the plaintiff does not
allege that he was entitled to counsel or to a
hearing under the circumstances, nor that there
was a breach of the Parole Act', nor that he is
entitled to the relief which he seeks, nor does he
state why there should be a declaration that his
original sentence of five years has been satisfied as
of August 4, 1975.
Undoubtedly, such deficiencies make it very dif
ficult to draft a defence that would properly meet
allegations that are not formally made but can
only be assumed. These deficiencies however are
not necessarily fatal and could conceivably be
cured by allowing amendments to the declaration.
In any event, counsel for defendant attached more
importance to his other two arguments based on
the Parole Act.
Under section 22(1) of the Penitentiary Acte,
prisoners are credited with statutory remissions
amounting to one-quarter of the sentence. Under
section 24(1) they may be credited three days per
month for earned remission on good behaviour.
Plaintiff alleges that he was credited a total of 578
days under both remissions.
Under section 15 (1) of the Parole Act where an
inmate to whom parole was not granted is released
as a result of any remission he shall be subject to
mandatory supervision for the duration of his
remission. But section 16 of the Parole Act author
izes the Board to suspend and revoke parole and to
apprehend the paroled inmate, which is precisely
what the Board did. Subsections 16(1) and 16(2)
read as follows:
R.S.C. 1970, c. P-2.
2 R.S.C. 1970, c. P-6.
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.
Section 20(1) of the Parole Act provides that
where the parole granted to an inmate has been
revoked he shall be recommitted to his former
place of confinement to serve the portion of his
term that remained unexpired at the time parole
was granted to him including any period of remis
sion, including earned remission. The section reads
as follows:
20. (1) Where the parole granted to an inmate has been
revoked, he 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 to him, to serve the portion of his term
of imprisonment that remained unexpired at the time parole
was granted to him, including any period of remission, includ
ing earned remission, then standing to his credit, less any time
spent in custody as a result of a suspension of his parole.
In his statement of claim, the plaintiff alleges
that he was recommitted to Kingston Penitentiary,
his former place of confinement. There is no alle
gation that the date of June 14, 1976 is not in
accordance with the provisions of the above sec
tion. The date of August 4, 1975 for which a
declaration is sought by plaintiff does coincide
with the end of a straight, uninterrupted five-year
sentence from August 4, 1970, but it ignores all
the events alleged by the plaintiff in his statement
of claim and the relevant provisions of the Act
above referred to.
Section 15(2) provides that the above section
applies to an inmate who is subject to mandatory
supervision as though he were an inmate on parole
and as though the terms and conditions of his
mandatory supervision were terms and conditions
of his parole.
It is therefore abundantly plain and clear that
the Parole Board had full authority under the Act
to deal with the plaintiff as alleged by him in his
statement of claim.
The third argument of the defendant is to the
effect that the Parole Act prevents this Court from
reviewing decisions of the Board. Section 6 of the
Act gives the Board exclusive jurisdiction to grant
or revoke parole and section 23 provides that
decisions under this Act are not subject to appeal
or review by any Court.
6. Subject to this Act and the Prisons and Reformatories
Act, the Board has exclusive jurisdiction and absolute discre
tion to grant, refuse to grant or revoke parole.
23. An order, warrant or decision made or issued under this
Act is not subject to appeal or review to or by any court or
other authority.
In her oral argument counsel for the plaintiff
submitted that there was a breach of natural jus
tice implying that this Court should review and set
aside the decisions of the Board. Such a review
would fall under the jurisdiction of the Federal
Court of Appeal under section 28 of the Federal
Court Acta if the decision of the Board was other
than a decision of an administrative nature not
required by law to be made on a judicial or
quasi-judicial basis. (See Howarth v. National
Parole Board')
Although I am naturally reluctant, as I should
be, to grant an order to strike out a statement of
claim, I have no alternative but to do so in this
instance, because it is plain and clear that plaintiff
does not have a cause of action and moreover does
not allege in his statement of claim that he has
one.
3 R.S.C. 1970, (2nd Supp.) c. 10 as amended by 1973-74, c.
17, s. 8; 1974-75, c. 18.
(1975) 18 C.C.C. (2d) 385.
Counsel for the defendant has suggested that
the proper party to be named as defendant should
have been the Attorney General of Canada and
not Her Majesty the Queen. The learned judgment
of my brother Addy J. in "B" v. The Commission
of Inquiry 5 would support that view.
ORDER
I hereby order that the statement of claim be
struck out and the action dismissed with costs to
the applicant if she wishes to claim them.
5 [1975] F.C. 602.
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.