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T-957-79
James Robert Stevens (Applicant)
v.
National Parole Board (Respondent)
Trial Division, Mahoney J.—Toronto, February 26; Ottawa, February 28, 1979.
Parole — Applicant, on suspension of his release under mandatory supervision, recommitted to custody — Respondent Board refused to deal with case at time case was referred to it, insisting on lapse of 15 days as provided for by Parole Regulations — Both options available to respondent Board on making its decision resulting in applicant's release — Whether or not subs. 20(1) of the Parole Regulations to be interpreted as requiring respondent to wait 15 days from the date of referral before dealing with the matter — Whether or not subs. 20(1) of the Parole Regulations is ultra vires — Parole Act, R.S.C. 1970, c. P-2, ss. 9(1)(k),(o), 16 — Parole Regulations, SOR/78-428, s. 20(1),(2).
APPLICATION. COUNSEL:
J. Fyshe for applicant.
T. L. James for respondent.
SOLICITORS:
Martin, Kainer & Fyshe, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order ren dered in English by
MAHONEY J.: These reasons ensue upon the grant from the bench at the hearing of the order sought by the applicant, the style of cause having, by consent, been amended and counsel for the originally named respondents, the Solicitor Gener al of Canada and the National Parole Service, accepting service on behalf of the present respond ent and consenting to the immediate return of the originating notice of motion. The issue is novel and the Deputy Attorney General of Canada wished it to be determined. Any delay would have resulted in it becoming academic.
The following provisions of the Parole Act' are in immediate issue.
9. (1) The Governor in Council may make regulations
(k) prescribing the time within which the Board must con duct a hearing and render a decision after referral to it of a case pursuant to subsection 16(3);
(o) providing for such other matters as are necessary to carry out the provisions of this Act or to facilitate the carrying out of the functions of the Board.
16. (1) A member of the Board or a person designated by the Chairman, when a breach of a term or condition of parole occurs or when the Board or person is satisfied that it is necessary or desirable 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 him,
(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 his parole is cancelled or his parole is revoked.
(2) The Board or a person designated by the Chairman may, by a warrant in writing, transfer an inmate following his recommitment to custody pursuant to paragraph (1)(c) to a place where he is to be held in custody until the suspension of his parole is cancelled or his parole is revoked.
(3) 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 therein 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.
(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 forthwith upon comple tion 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.
The question is whether subsection 20(1) of the Parole Regulations 2 is to be interpreted as requir ing the respondent to wait 15 days from the date of the referral under subsection 16(3) of the Act before deciding to revoke a parole and, if so, whether it is intra vires.
' R.S.C. 1970, c. P-2. 2 SOR/78-428.
20. (1) Where, in the case of a federal inmate,
(a) parole granted to the inmate has been suspended,
(b) the inmate is in custody, and
(c) the inmate's case has been referred to the Board pursu ant to subsection 16(3) of the Act,
the Board shall not revoke the inmate's parole until a period of fifteen days has elapsed following receipt by the Board of the referral.
(2) Where the case of an inmate has been referred to the Board pursuant to subsection 16(3) of the Act and that inmate has applied for a hearing in respect of the referral during the period referred to in subsection (1), the Board shall
(a) commence a hearing as soon as practical following receipt by the Board of the application; and
(b) inform the inmate of the date of the hearing at least fourteen days before the date the hearing is to commence.
The applicant was released from close custody on mandatory supervision in March 1978, and, on January 31, 1979 was convicted of theft under $200. The same day his release under mandatory supervision was suspended and he was recommit- ted to custody under section 16 of the Parole Act. The case was referred to the respondent pursuant to subsection 16(3) on February 12. The respond ent has refused to deal with the matter under subsection 16(4) until expiration of the fifteen days provided by subsection 20(1) of the Regula tions. The applicant has waived the hearing to which he is entitled under subsection 20(2) of the Regulations.
The applicant is, in the jargon of the trade, a "turnaround". If the respondent cancels the sus pension of his mandatory supervision he will, of course, resume his freedom from close custody. If, on the other hand, it revokes his parole, a recalcu- lation of his sentence under section 20 of the Act will result in a determination that his sentence has been fully served because of the earned remission that stood to his credit in March 1978. Whichever of the decisions it is entitled to make is arrived at by the respondent, the applicant will be released from custody. Meanwhile he remains in custody pending effluxion of the 15 days provided by sub section 20(1) of th,e Regulations which, in the respondent's view, must run before it can reach one of the decisions open to it.
The Regulation is cast in mandatory terms. The respondent's interpretation of it is the only reason able interpretation open to it.
The Regulation does not fall within the power delegated by paragraph 9(1)(k). A regulation stipulating that a decision shall not be made within a certain time is not a regulation prescribing the time within which a decision must be made. It is the opposite of what is authorized.
I do not think that the general power to make regulations delegated by paragraph 9(1)(o) can be construed as authorizing the making of Regulation 20(1). It does not deal with an "other matter" but rather with a matter authorized to be dealt with by paragraph 9(1)(k). The power to make regulations "necessary ... to facilitate the carrying out or the respondent's functions, being general, cannot be construed as authorizing the making of a regula tion with the opposite effect to one which is specifically authorized.
Finally, the Regulation is inconsistent with the Act. Subsection 16(4) of the Act requires that, upon referral, the respondent review the case and cause the inquiries it deems necessary to be made and "forthwith" thereafter, to decide. It may well be that, in many, or even most, cases, fifteen days would necessarily be expended in completion of the required review and investigation. In some, per haps more time would be needed. However, where less time is required to complete the review and investigation, a regulation requiring that the deci sion be delayed cannot be given effect over the clear requirement of the Act that it be made forthwith.
In my view, subsection 20(1) of the Parole Regulations is ultra vires the power delegated to the Governor in Council to make regulations and is further ultra vires as it is contrary to the express requirement of the Act. The applicant was entitled to a writ of mandamus directing the respondent, forthwith upon completion of the review of his case and the completion of its inquiries in connection with it, to either cancel the suspension of his release on mandatory supervision or to revoke his parole.
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