T-4086-80
Robert Douglas Rain (Applicant)
v.
National Parole Board (Respondent)
Trial Division, Smith D.J.—Winnipeg, September
22, 1980 and March 21, 1981.
Prerogative writs — Certiorari — Application for order to
quash the Parole Board's decision to revoke applicant's parole
— Applicant was arrested and charged with assault while on
full parole — Parole was suspended — Applicant was ques
tioned about criminal charges by parole officer and classifica
tion officer — Applicant appeared, without counsel, before the
Board which revoked his parole — Evidence is contradictory
as to whether applicant requested that counsel be present at
hearing — Whether Board's decision to revoke parole should
be. quashed — Application dismissed — Parole Act, R.S.C.
1970, c. P-2, as amended, s. 6.
Application to quash the Parole Board's decision to revoke
the applicant's parole. The applicant was arrested and charged
with assault while on full parole. On the same day, his parole
was suspended. Two weeks later the applicant was questioned
by his parole officer and the classification officer about the
pending assault charge. He was advised that his suspension
would not be lifted and that revocation of his parole would be
recommended to the Board. The applicant was advised that
lawyers were not allowed to attend before the Board. The
applicant appeared without counsel before the Board and
alleges that his request to have counsel present was denied. The
Board, through one of its members, alleges that at no time did
the applicant request to be represented by counsel. The ques
tion is whether the decision of the Board to revoke parole
should be quashed on the grounds that the Board violated the
duty of fairness by denying the applicant's request to have
counsel present.
Held, the application is refused. The applicant's parole was
suspended by reason of his arrest on the charge of assault. If
the charge was found correct it would constitute a breach of a
condition of his parole. This being so, his parole officer had not
only the right but the duty to question him concerning his
conduct. Having regard to the wide powers over parole given to
the Parole Board by the Parole Act, revocation of the appli
cant's parole should not be quashed on the ground solely that
some questions were put to him about alleged new criminal
offences. The position of a parole officer or classification officer
is different from that of the Board. Neither of them has any
power to revoke parole. The applicant did not ask for counsel to
be present when he was being questioned by the parole officer
and the classification officer. Nor was he entitled to counsel at
that time. The most they could do was to recommend to the
Board that his parole be revoked. Such a recommendation
would have no direct effect on his interests. Only the Board
could make the decision to revoke parole. Also, the evidence as
to whether the applicant requested that his lawyer be present at
the Board hearing is contradictory. There was cogent admis
sible evidence on which the Board could reasonably come to the
conclusion that the applicant's parole should be revoked.
Dubeau v. National Parole Board [1981] 2 F.C. 37,
distinguished.
APPLICATION.
COUNSEL:
Arne Peltz for applicant.
Craig Henderson for respondent.
SOLICITORS:
Ellen St. Community Legal Services, Win-
nipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
SMITH D.J.: This is an application for an order
in the nature of a writ of certiorari to quash the
determination, dated April 1, 1980, made by the
respondent to revoke the applicant's parole. The
applicant's affidavit sets out the following undis
puted facts.
On December 12, 1975 the applicant was sen
tenced to a period of ten years' incarceration at
Stony Mountain Institution on a conviction for
manslaughter.
On April 30, 1979 he was granted day parole.
On August 24, 1979 he was granted full parole by
the respondent. He then moved to 628 Herbert
Avenue, Winnipeg and entered into a common law
union with Elizabeth Woodrow, a divorced woman
who had custody of her children and lived with
them at that address. He speaks of Mrs. Woodrow
as his wife. He resided there till February 5, 1980.
During that period there were conflicts between
him and his wife's son Tod, arising out of his
attempts to control the boy's "acting out"
behaviour.
On February 5, 1980, he was arrested and
charged with assault, on Tod, causing bodily harm.
The Provincial Judges' Court set bail at $1,000,
which was provided by his common law spouse.
However, on the same day his parole was suspend
ed and he was returned to Stony Mountain Institu
tion. About two weeks later he was interviewed by
Steve Belle, his parole officer, and Ron Schultz,
classification officer. On this occasion he was
questioned at length about the pending assault
charge. He states that he declined to answer ques
tions but that on Mr. Belle's and Mr. Schultz'
insistence, which he says was extreme, he did
answer their questions. At the end of the interview
he was advised that his suspension would not be
lifted and that revocation of parole would be
recommended to the respondent. He was also
advised that he could have a hearing before the
Parole Board. He thereupon said he wanted his
lawyer present at the Parole Board hearing, but
was told that lawyers were not allowed to attend
before the Parole Board.
From a brief statement of agreed facts filed at
the hearing before me as Exhibit 1 it is clear that
both before and at the time of the Parole Board
hearing it was the policy of the Board not to
permit counsel at revocation hearings.
The applicant, on the above advice that he could
not have counsel, prepared for the Board hearing
without legal assistance.
The Parole Board hearing was held on April 1,
1980. There is direct conflict in the evidence about
some of the things that occurred at this hearing,
which was conducted by two members of the Na
tional Parole Board, both Mr. Belle and Mr.
Schultz also being present.
The applicant's evidence is contained in para
graphs 12 to 16 inclusive, of his affidavit, which
read as follows:
12. THAT the Respondent appeared to be interested only in the
pending criminal charge, and questioned me thoroughly on that
matter. As soon as the questions started, I told the Board that
the charge was before the Criminal Court and that my lawyer
was Mr. Hersh Wolch. I indicated that I did not want to have
the case tried before the Parole Board. I advised the Board that
I had pleaded not guilty to the charge and had not yet gone to
preliminary hearing.
13. THAT the Board was insistent in questioning me about, the
pending criminal charge. As a result, I requested an opportu
nity to have my counsel present. This request was refused. The
members of the Board told me that the Respondent does not
allow lawyers to be present at post-suspension hearings.
14. THAT the only issue inquired into by the Respondent was
the assault charge. I answered some questions but shortly
afterwards declined to answer any further questions.
15. THAT after the issue of the pending criminal charge had
been dealt with, I attempted to make a submission on the
question of whether or not my parole should be revoked. I
attempted to deal with questions such as my progress in
overcoming alcoholism, my studies, and my family situation. I
was told by the Respondent that these matters had no bearing
on the decision. In light of that position, I was uncertain
whether I should make any effort to tender the letters I had
brought to the hearing. However, I decided to advise the Board
that I had various documents in support of my case and asked
that they be considered. The letters were tendered. Neither
member of the Board appeared to look at them or read them. I
was not asked any questions about the contents of the letters.
16. THAT I then left the hearing room for a few minutes. I was
then recalled and advised that my parole had been revoked
without any re-credit or remission.
The letters referred to in paragraph 15 are
attached to his affidavit and marked as Exhibits
"A" to "H" thereto.
The evidence contrary to much of what is con
tained in the quoted paragraphs of the applicant's
affidavit is contained in the affidavit of M. R.
Evans, one of the two Board members who con
ducted the hearing, paragraphs 4 to 9 of which
read as follows:
4. THAT at no time before or during the course of the hearing
did the Applicant make a request to the Board to be represent
ed at the hearing by counsel.
5. THAT at no time during the course of the hearing was the
Applicant told that his progress in overcoming alcoholism, his
studies and his family situation had no bearing on its decision.
In fact, these matters were considered by the Board.
6. THAT although the circumstances surrounding the pending
assault charge referred to in the Affidavit of the Applicant and
sworn the 29th day. of August, 1980 were discussed, these were
not the only matters discussed, but rather the Applicant's whole
conduct since the granting of Parole on the 24th day of August,
1979 and especially his conduct during the month immediately
preceeding [sic] his parole suspension, were of paramount
concern to the Board and were discussed in detail during the
hearing with the Applicant.
7. THAT Exhibits "A" through "G" in the Applicant's Affidavit
sworn on the 29th day of August, 1980, were presented by the
Applicant at the said hearing and were reviewed at that time by
the Board.
8. THAT at no time during the said hearing did the Applicant
decline or appear reluctant to answer any questions posed to
him by either member of the Board.
9. THAT the fact that criminal charges were pending at the time
of the said hearing had no bearing on the Board's decision to
revoke the Applicant's parole in the present case, but rather his
parole was revoked on the 1st day of April, 1980 for reasons set
out in the Respondent's letter of April 16, 1980 to the Appli
cant, and attached hereto and marked as Exhibit "B" to this
my Affidavit is a copy of the said letter.
A copy of the letter of April 16, 1980, from the
respondent to the applicant, referred to in para
graph 9 of Mr. Evans' affidavit as Exhibit "B", is
also attached as Exhibit "I" to the applicant's
affidavit. The portion of it that is relevant to the
present application is as follows:
Dear Mr. Rain:
On April 1, 1980, the National Parole Board interviewed you
in response to your request for a Post Suspension Hearing. This
will confirm that the Board decided to revoke your parole with
no recredit of remission. Its reasons are as follows:
1) Breach of Special Instruction by assaulting children (he
admits on three occasions).
2) Threatening to kill one of the children, by telephone to his
supervisor.
3) Had been drinking for a week.
4) To prevent further assaultive behaviour.
5) Lacks any indepth insight into how deep his problems are.
The Board also commented that you must show more insight
into how deep your problems are with respect to dealing with
relationship problems and your aggressive approach to prob
lems. Before any further release is considered, it is the Board's
opinion, that a full psychiatric report plus psychological assess
ment should be prepared.
Certain additional undisputed facts appear from
the applicant's affidavit. Paragraph 20 states that
on June 25, 1980, more than two and a half
months after the Parole Board decision, he was
tried and convicted on the charge of assault on the
boy Tod, on the ground that, granting that he was
in loco parentis to the boy, the force he had used
was excessive in the circumstances. He was sen
tenced to six months' imprisonment consecutive to
the term being served.
Paragraph 18 indicates that, when his parole
was revoked, in addition to losing the conditional
liberty he enjoyed on parole, he lost the sentence
remission credits he had built up during the years
he had served in custody at Stony Mountain Insti
tution. Parole is a privilege, not a right, but the
revocation of it certainly affected his interest in
remaining at liberty and also his interest in main
taining the sentence remission credits of something
over 13 months that he had built up.
The evidence also discloses that during the years
he was at Stony Mountain he enrolled in and
completed eight courses in Arts conducted by the
University of Manitoba at the Institution, that
while on day parole he attended further courses
directly at the University and was planning on
continuing with the final year's work to qualify for
an Arts degree. It is clear that his academic work
was pursued steadily and that his record in the
courses taken was quite good.
Both he and his wife have drinking problems, his
problem being of long duration and severity. His
present situation is no doubt related to his drinking
problem, because it appears that he had been
drinking for about a week prior to the assault on
the boy Tod. Both he and his wife joined Alcohol
ics Anonymous many months ago. Exhibit "E" to
the applicant's affidavit, which is a memorandum
dated March 6, 1980, written by the Roman Cath
olic Chaplain at Stony Mountain, states, with
relation to the applicant and his wife:
I have known Doug and Elizabeth for quite some time and am
pleased with their association. They are both dedicated mem
bers of Alcoholics Anonymous.
Exhibits "F" and "G" also speak well of the
sincere and good efforts the applicant and his wife
have been making to enable them to resolve his
and her alcohol problems and of their regular
attendance at A.A. meetings and their sincerity in
pursuing the A.A. program.
Having related the facts I now turn to the
grounds for the relief asked for. The notice of
motion asks for an order quashing the Parole
Board's decision to revoke the applicant's parole,
on the following grounds:
1. THAT the said revocation of parole was made without
jurisdiction and in excess of jurisdiction and contains errors of
law on the face of the record.
2. THAT the Respondent, THE NATIONAL PAROLE BOARD,
erred in law and acted without and in excess of jurisdiction by
taking into account irrelevant considerations, to wit, by consid
ering the fact of pending criminal charges, by considering the
alleged particulars of the said criminal charges and by ques
tioning the Applicant with respect to the said charges.
3. THAT in the alternative to ground 2 herein, the Respondent,
THE NATIONAL PAROLE BOARD, violated the duty which lies
upon it to act fairly in deciding whether or not to revoke the
Applicant's parole, and more particularly,
(a) violated the duty of fairness by denying the Applicant's
request to have counsel present at the revocation hearing,
and,
(b) violated the duty of fairness by neglecting or refusing to
hear and consider evidence and submissions from the Appli
cant during the course of the revocation hearing.
4. THAT also in the alternative to ground 2 herein, the Respond
ent, THE NATIONAL PAROLE BOARD, erred in law and acted
without and in excess of jurisdiction by denying the Applicant's
request to have counsel present at the revocation hearing,
contrary to Section 2(d) of the Canadian Bill of Rights.
5. AND on such further and other grounds as may be disclosed
by the record and as counsel may advise and this Honourable
Court may allow.
The applicant's counsel relied almost entirely on
the grounds alleged in paragraphs 2 and 3. At the
opening of his argument counsel withdrew sub-
paragraph 3(b). He then stated that essentially the
only question remaining on the application was
that of the applicant's claim that the Board had
refused to allow him to have counsel present at the
hearing.
Counsel submitted that this case was basically
similar to that of Dubeau v. National Parole
Board [[1981] 2 F.C. 37] in which by my decision
dated May 29, 1980 the Board's order revoking
the applicant's parole, dated March 4, 1980, was
quashed. He mentioned two or three differences in
the cases, only one of which, in my opinion, could
have any bearing on the decision in the present
application. At the time of the application hearing
in the Dubeau case, the criminal proceedings
against him had not been dealt with by the Court,
but at the hearing in the present application we
knew that nearly three months after the Parole
Board's decision to revoke the applicant's parole,
he was convicted on the charge of assault that was
then outstanding and was sentenced to an addi
tional six months of imprisonment.
In my view, if the Board did refuse to allow
counsel to be present at the hearing and was wrong
in so doing, and if the applicant was or may have
been prejudiced by that refusal, the subsequent
conviction of the applicant cannot retroactively
validate the error.
There are, however, other differences in the
cases which require consideration.
In the Dubeau case there was no evidence that
the applicant was ever questioned by his parole
officer about the criminal charges. In the present
case he was questioned persistently about the
assault charge by his parole officer and the clas
sification officer. In his evidence this questioning
occurred a couple of weeks after he was suspended.
We do not know what questions were asked or
what answers were made, but we do know that Mr.
Belle, the parole officer, stated, on the applicant's
application form for a post-suspension hearing,
dated February 12, 1980 (Exhibit "A" to Mr.
Evans' affidavit) that the reasons for his suspen
sion were:
1. Violation of the instruction of your Parole Officer and an
N.D.D. (the letter "N" may be wrong) that you should not
beat the children of your common law wife.
2. Threats to kill the beaten child.
3. The prevention of a breach of a term or condition of parole.
4. The Protection of society.
There is nothing in the record to indicate that
the applicant had ever beaten or been accused of
beating any of his common law wife's children
prior to the incident which led to his arrest on
February 5, 1980, but Mr. Belle must have had
some information on which to state that a reason
for the suspension was "Violation of the instruc
tion ... that you should not beat the children of
your common law wife."
The source of that information and its exact
nature has not been disclosed, but one possible
source is the applicant himself.
Again, the letter from the Board to the appli
cant, dated April 16, 1980, (Exhibit "I" to the
applicant's affidavit and Exhibit "B" to Mr.
Evans' affidavit), gives the first two reasons for the
decision to revoke parole as being:
1) Breach of Special Instruction by assaulting children (he
admits on three occasions).
2) Threatening to kill one of the children, by telephone to his
supervisor.
These two grounds are the same as the first two
in Mr. Belle's reasons for suspension, with two
significant additions. The first addition is that the
applicant admitted that he had assaulted children
on three occasions. It is uncertain whether these
additional words are intended to mean that the
applicant made this admission to the Board at the
Board hearing or to his supervisor, or to both. The
supervisor, being present at the hearing, may have
told the Board about it, but whether he did so is
unknown to mc. An admission of this kind, made
to the supervisor, or someone else, or properly
obtained by the Board from the applicant at the
hearing, would be admissible and would be rele
vant evidence in deciding whether or not to revoke
parole.
The second addition is that the asserted threat
to kill one of the children was made by telephone
to his supervisor. This clearly means that the
supervisor had first hand knowledge of the threat
direct from the applicant. Further, the information
on this matter must have come to the Board from
the supervisor. Such a statement to his supervisor
is certainly admissible and relevant evidence.
In the present case I think I am right in assum
ing that the applicant's parole was suspended by
reason of his arrest on the charge of assaulting
Tod. If the charge was found correct it would
constitute a breach of a condition of his parole.
This being so, his parole officer, Mr. Belle, had not
only the right but the duty to question him con
cerning his conduct. He and Mr. Schultz did so,
the chief purpose in doing so being to determine
what recommendation should be made to the
Parole Board. I cannot see any valid objection to
the procedure followed. In the Dubeau case I
concluded that an argument could be made that
the Parole Board should not have questioned
Dubeau about pending criminal charges, but that
in the circumstances, and having regard to the
very wide powers over parole given to the Parole
Board by the Parole Act, R.S.C. 1970, c. P-2, as
amended, revocation of the applicant's parole
should not be quashed on the ground solely that
some questions were put to him about alleged new
criminal offences.
Section 6 of the Parole Act provides:
6. Subject to this Act, the Penitentiary Act and the Prisons
and Reformatories Act, the Board has exclusive jurisdiction
and absolute discretion to grant or refuse to grant parole or a
temporary absence without escort pursuant to the Penitentiary
Act and to revoke parole or terminate day parole.
The position of a parole officer or classification
officer is quite different from that of the Board.
Neither of them has any power to revoke parole.
My decision to quash the revocation in the
Dubeau case was based on the Board's refusal, in
the circumstances of that case, to allow the appli
cant to be represented by legal counsel at the
hearing. In my view the loss of conditional liberty
enjoyed while on parole plus the loss of earned
sentence remissions which could result from revo
cation of parole would be seriously prejudicial to
his interests and for this reason he was entitled, in
fairness, to have the benefit of counsel at the
hearing.
In the present case the applicant did not ask for
counsel to be present when he was being ques
tioned by Mr. Belle and Mr. Schultz. Nor, in my
opinion, was he entitled to counsel at that time.
The most they could do was to recommend to the
Board that his parole be revoked. Such a recom
mendation would have no direct effect on his
interests, though it might have some influence on
the Board's thinking about the case. Only the
Board could make the decision to revoke parole
and the applicant had a right to present, at the
Board's hearing, all facts and argument that might
help his case.
The foregoing analysis shows that there are
important distinctions between the present case
and that of Dubeau, and that those distinctions are
unfavourable to the present application. One fur
ther point requires consideration. In the Dubeau
case it is clear that the applicant requested that his
lawyer be present at the Board hearing, and was
refused. In the present case the evidence on this
point is completely contradictory, as is the evi
dence concerning the applicant's willingness to
answer questions. See paragraphs 12 and 13 of the
applicant's affidavit and paragraphs 4 and 8 of the
affidavit of Mr. Evans, who was one of the mem
bers of the Parole Board that sat on the hearing,
all of which paragraphs are quoted earlier in these
reasons.
Neither of the deponents was cross-examined on
his affidavit, and no attempt was made at the
hearing before me to introduce additional evi
dence. The facts stated in the two affidavits cannot
both be correct. However, without impugning the
applicant's good faith, I would find it very difficult
to believe that a member of the National Parole
Board would deliberately make false statements
about what transpired in his presence at a hearing.
I find nothing in the evidence which would suggest
that the Board members were not seeking to con
duct the hearing impartially and in complete
accordance with their responsibility. Accordingly I
am unable to find that the applicant has proved
that he requested or was refused permission to
have legal counsel present at the hearing.
There was cogent admissible evidence on which
the Board could reasonably come to the conclusion
that the applicant's parole should be revoked.
Recognizing that certiorari is a discretionary
remedy, my final conclusion is that this is not a
proper case for me to exercise that discretion in
favour of the applicant.
The application is therefore refused.
While feeling that the decision just stated is the
only one to which I could properly come, I deem it
desirable to make one comment. The evidence,
though not as extensive as could be wished, points
strongly in the direction of the applicant's serious
drinking problem being the prime cause of all his
troubles with the law. Several of the letters filed as
exhibits to the applicant's affidavit indicate that
both he and his wife, who has a similar but less
severe problem, now realize that their future is
precarious unless they can overcome this problem.
It appears that for many months they have been
members of Alcoholics Anonymous and have zeal
ously attended meetings and followed its program,
lending mutual support to each other. The writers
of the letters felt that their efforts were sincere and
that they were making progress. If they have
continued to follow the A.A. program faithfully
during the many months since these letters were
written it should soon, if not now, be possible to
appraise the likelihood of their having completely
shaken off their problems.
The applicant's better than average academic
record in the university Arts courses he has
already taken, evinces a good level of intelligence
and ability. If he has succeeded in escaping from
dependence on drink it seems likely that he could
become a really useful member of society.
For this reason I hope and expect that the prison
authorities and the Parole Board will be kept
informed of developments, so that, if the situation
warrants it he may again be granted parole.
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.