A-670-81
Donald James Morgan (Applicant) (Appellant)
v.
National Parole Board (Respondent) (Respond-
ent)
Court of Appeal, Thurlow C.J., Heald and Ryan
JJ.—Ottawa, January 20 and 26, 1982.
Judicial review — Prerogative writs — Certiorari — Parole
— Appeal from dismissal of application to quash Parole
Board's decision to revoke parole — Appellant not assisted by
counsel at hearing although s. 20(2) of Parole Regulations
grants inmates such right — No notice given that allegations
of criminal conduct to be considered at hearing, and appellant
was not offered adjournment to obtain counsel — Parole
revoked, one reason being allegations of criminal conduct
Whether Board breached duty to act fairly — Appeal allowed
— Parole Act, R.S.C. 1970, c. P-2, ss. 9(1)(g),(h),(i),(j),(k), 11,
16(3),(4), 20(2),(3) — Parole Regulations, C.R.C. 1978, Vol.
XIII, c. 1249, ss. 20, 20.1, 21, 22.
Appeal from trial judgment dismissing appellant's applica
tion to quash National Parole Board's decision to revoke his
day parole. Parole was suspended on the ground that he "Left
Osborne Centre without permission". The case was referred to
the Board pursuant to subsection 16(3) of the Parole Act, and
the appellant applied for a post-suspension hearing under sub
section 20(2) of the Parole Regulations. No counsel was
present at the hearing, although section 20.1 of the Regulations
provides that an inmate may be assisted by a person of his
choice at such a hearing. Allegations of criminal conduct,
among other things, were considered at the hearing, although
the appellant had not been notified that such allegations would
be considered. The appellant was not informed of his right to
counsel and was not offered an adjournment to obtain counsel
before he was asked to respond to allegations of criminal
behaviour. The Board's decision to revoke parole was based
partially on a consideration of the allegations of criminal
conduct. The issue is whether the Board breached its duty to
act fairly.
Held, the appeal is allowed. The Trial Judge erred in con
cluding that the issue of fairness was fully met. Regulation
20(2)(b) prescribes that an inmate in such a situation is to have
at least 14 days' notice of the date fixed for the commencement
of the hearing. The only conceivable purpose of such a provi
sion is to give the inmate an adequate opportunity to deal with
the subject-matter of the hearing. The obligation to proceed
fairly is not met when an inmate is faced at the hearing with
subject-matter in respect of which he was not given prior notice
and was not offered an opportunity to consider his course or
prepare his response. While there was no legal obligation on the
Board under Regulation 20.1 to apprise the appellant of his
right to counsel, it was a further aggravation of the unfairness
in the situation for the Board, knowing of the recent amend
ment of the Regulations to confer such a right, to refrain from
advising the appellant of it.
APPEAL.
COUNSEL:
Arne Peltz for appellant.
Theodore Tax for respondent.
SOLICITORS:
Ellen Street Community Legal Services,
Winnipeg, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an appeal from a judg
ment of the Trial Division [[1982] 2 F.C. 63]
which dismissed the appellant's application for an
order removing into this Court and quashing the
decision of the National Parole Board made on or
about the 5th day of May 1981 revoking day
parole granted to the appellant on or about March
18, 1981. The sole issue in the appeal is whether
the Board, in exercising its undoubted power to
revoke the parole, observed its duty to proceed in a
manner that was fair to the appellant having
regard to the provisions of the Parole Act, R.S.C.
1970, c. P-2, the statutory regulations made under
it and the particular circumstances of the case.
The appellant's parole had been suspended on
March 22, 1981 and notice of such suspension had
been given to the appellant by a violation report
delivered and explained to him on or about March
25, 1981. The only ground for suspension men
tioned in the report was, "Left Osborne Centre
without permission."
In this situation subsections 16(3) and (4) of the
Act provide:
16....
(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.
Paragraphs 9(1)(g), (h), (i), (j) and (k) and
section 11 also provide:
9. (1) The Governor in Council may make regulations
(g) prescribing the circumstances in which an inmate is
entitled to a hearing upon any review of his case for parole;
(h) prescribing the information, and the form thereof, to be
supplied or made available to an inmate by the Board or
other persons before any hearing is held by the Board in
respect of parole for that inmate;
(1) prescribing the circumstances in which an inmate is to be
entitled to assistance at a hearing before the Board, the kind
and extent of such assistance and the persons or class of
persons who may provide the assistance;
(j) prescribing the circumstances in which the Board must
provide the inmate with its reasons for any decision made by
the Board regarding parole of the inmate and the form in
which the reasons must be provided;
(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);
11. Subject to such regulations as the Governor in Council
may make in that behalf, the Board is not required, in consider
ing whether parole should be granted or revoked, to personally
interview the inmate or any person on his behalf.
Regulations [Parole Regulations, C.R.C. 1978,
Vol. XIII, c. 1249] made under the powers con
ferred by section 9 provided as follows:
Post-Suspension Hearing
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 pursuant
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.
Assistance at Hearings
20.1 (1) Where a hearing is conducted pursuant to subsec
tion 15(1) or 20(2), the Board shall permit the inmate to be
assisted by a person of his choice.
(2) An inmate shall be responsible for securing the attend
ance at a hearing referred to in subsection (1) of the person
referred to in that subsection.
(3) The person referred to in subsection (1) shall be entitled
(a) to be present at the hearing at all times when the inmate
he is assisting is present at the hearing;
(b) to advise the inmate in respect of any questions put to
that inmate by the Board during the hearing; and
(c) at the conclusion of the hearing, to address the members
of the Board conducting the hearing, for a period of ten
minutes, on behalf of the inmate.
Revocation of Parole
21. Where the Board revokes the parole of a federal inmate
who is in custody, it shall, within fifteen days after the parole is
revoked, inform the federal inmate, in writing, of the reason his
parole was revoked.
Section 20.1 came into effect on April 9, 1981,
that is to say, after the suspension of the appel
lant's parole on March 22, 1981 and before its
revocation on May 5, 1981. There were no appli
cable regulations under paragraph 9(1)(h) pre
scribing information to be supplied or made avail
able to the suspended inmate before the hearing.
Following the events of March 22 and March
25, 1981 already mentioned the appellant's case
had been referred to the Board under subsection
16(3) of the Act and the appellant, under subsec
tion 20(2) of the Regulations, had requested a
hearing. Notice that the hearing would take place
on or about May 7, 1981 was given to the appel
lant by a letter dated April 14, 1981, the body of
which read:
Dear Mr. Morgan:
Your application for a post suspension hearing has been
received.
Please be informed that your hearing will take place before
members of the National Parole Board on or about May 7,
1981.
While the letter made no reference to subject-
matter to be dealt with at the hearing the Board
was aware, as was the appellant, that on March
22, 1981 the appellant had been arrested by Win-
nipeg police, had been charged with possession of
stolen property found in a room occupied by him
at the Osborne Centre and was awaiting a prelim
inary hearing to be held in August, 1981.
The appellant's affidavit shows that prior to the
Parole Board hearing on May 5, 1981, he contact
ed his lawyer to ask that he appear at the hearing
and request that the appellant's day parole be
reinstated. He says it was his belief that lawyers
could not appear at such hearings. Whether that
belief arose from advice by the lawyer does not
appear. The affidavit also shows that:
As the result of a conversation with another inmate just prior to
entering the revocation hearing, it was my understanding that
the Parole Board could not consider outstanding criminal
charges without a lawyer being present.
There was no cross-examination on the affidavit
and these statements in it are not contradicted.
It is agreed between the parties that:
1. No counsel was present at the hearing before the National
Parole Board.
2. Allegations of criminal conduct, among other things, were
considered at the hearing.
3. No notice was given to the Appellant that the criminal
allegations were to be considered at the hearing.
The appellant's affidavit also states that when,
during the hearing, he concluded, as a result of
comments made, that the Board believed he had
been involved in criminal behaviour, he asked for
an adjournment to arrange for a lawyer to repre
sent him at the hearing but that this was denied.
As this is contradicted by the affidavit of one of
the two members of Board who were present at the
hearing, the alleged request cannot be regarded as
proven. It must also be accepted as set out in the
member's affidavit:
9. THAT, during the course of the post-suspension hearing,
DONALD JAMES MORGAN was asked if he wanted to say
anything about the information available to the National
Parole Board surrounding the arrest by the Winnipeg City
Police of DONALD JAMES MORGAN in the early morning hours
of March 22, 1981, and the finding later of stolen property in
the room occupied by DONALD JAMES MORGAN at the Osborne
Community Correctional Centre. DONALD JAMES MORGAN
was informed by the National Parole Board that he was not
compelled to answer questions in regard to these incidents but
was given the opportunity to offer his version of the incidents
and whatever his involvement may have been therein if he so
chose.
10. THAT, prior to rendering a decision, the National Parole
Board asked DONALD JAMES MORGAN if he wished to make
any further representations on his behalf concerning his behavi
our on day parole and matters relating thereto.
It seems clear from the silence of the affidavit
on the subject that the appellant was not informed
of his right to counsel and that he was not offered
an adjournment to obtain counsel before he was
invited to speak on a matter in respect of which a
charge was pending and on which he was awaiting
trial.
The affidavit of the member goes on to say that
at the conclusion of the hearing and after delibera
tion the decision was made to revoke the appel
lant's parole and he was informed of this and that
the reasons were:
—That he had violated the terms and conditions of his day
parole by leaving the Osborne Community Correctional
Centre without permission from his parole supervisor.
—That the circumstances of DONALD JAMES MORGAN'S arrest
by Winnipeg City Police on March 22, 1981, were highly
indicative of involvement in criminal behaviour; that is, being
found in the early morning hours absent without permission
from the Osborne Community Correctional Centre while in
company with another day parolee also absent from the
Osborne Community Correctional Centre in a rented
automobile which DONALD JAMES MORGAN had no permis
sion to be in possession of or to be in by his parole supervisor.
Later, the appellant was also informed, pursuant
to section 21 of the Regulations, by a letter dated
May 13, 1981 that:
On May 5, 1981, 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 day parole
with no recredit of remission.
The Board revoked your day parole for the following reasons:
1) Left Community Correctional Centre without authoriza
tion March 21, 1981, and subsequently, arrested by police.
2) Circumstances of arrest highly indicative of involvement
in criminal behaviour.
The appellant was also informed of his right to
request a re-examination of the decision by a
different panel of the Board pursuant to subsection
22(2) of the Regulations and that "the no Recredit
of Remission decision is not appealable".
Under subsection 20(2) of the Act the revoca
tion of a parole works an automatic forfeiture of
earned remission unless the Board, subject to the
Regulations, exercises its authority under subsec
tion 20(3) to recredit any part of such earned
remission.
In dismissing the appellant's application for cer-
tiorari the learned Trial Judge said [at pages
74-76]:
I am not impressed by the argument that the applicants were
not made aware of the issue the Board would be canvassing in
the course of the hearing. The applicants were fully informed
during the hearing why their cases were being reviewed by the
Board (see paragraphs 4, 5 and 9 of Chisholm's affidavits). The
nature of the hearing is intended to be carried on in an informal
manner and it is not necessary that everything that will be
brought out be detailed before the hearing commences. I am in
no doubt the conduct of the hearing and the avenues explored
were in proper keeping and in accordance with the provisions of
the Parole Act. R.S.C. 1970, c. P-2. In the Morgan hearing, as
will be noted, the reasons for the revocation of the day parole
were on two grounds, as set out in paragraph 11 of Chisholm's
affidavit and in the letter of May 13, 1981, aforementioned, to
Morgan from the Board, and in respect of Sango, there were
four grounds condensed into three in the letter of May 14,
1981, already referred to, to him from the Board.
The issue of fairness in respect of each of the applicants was
fully met.
Applicants' counsel further urged that by reason of the fact
that amending section 20.1 of the Regulations was enacted on
April 9, 1981 and the hearing was held May 5 of the same
year, applicants should have been advised of the provisions and
given an adjournment, if requested, to obtain assistance as
referred to in said section.
There is nothing in section 20.1 suggesting or requiring any
such information to be given to an inmate at a parole hearing
and it would seem to me if it was intended that an inmate
should be so informed, that section would provide accordingly.
I find it significant that subsection 20.1(2) states:
20.1 ...
(2) An inmate shall be responsible for securing the attend
ance at a hearing referred to in subsection (1) of the person
referred to in that subsection.
In view of the above, I am not prepared to hold that the
Board erred or failed in its duty in not advising applicants of
the provisions of section 20.1. As earlier stated, I repeat I do
not feel any unfairness to the applicants resulted therefrom.
With great respect I differ from the learned
Trial Judge's conclusion that the issue of fairness
was fully met. Regulation 20(2)(b) prescribes that
an inmate in such a situation is to have at least
fourteen days' notice of the date fixed for the
commencement of the hearing. The only conceiv
able purpose of such a provision is to give the
inmate an adequate opportunity to prepare to deal
with the subject-matter of the hearing. That
subject-matter, in my view, is necessarily the
alleged violation or violations of parole of which
the Board has been apprised and which are to be
investigated and taken into account by the Board
in reaching its decision to cancel the suspension or
to terminate or revoke the parole. I fail to see how
the obligation to proceed fairly is met when the
only violation of which the appellant was put on
notice before the hearing was "Left Osborne
Centre without permission," and when he was
faced at the hearing with additional subject-matter
in respect of which he was not only given no prior
notice but was not offered an opportunity to con
sider his course or prepare his response. The situa
tion, as I see it, is also aggravated by the fact that
the subject-matter was not merely something addi
tional but was behaviour in respect of which a
criminal charge was pending, the defence of which
might well be jeopardized by any response the
appellant might make or by his failure to make a
response. The fact a defence might be jeopardized,
as I see it, is not in itself a reason why the subject
could not be considered by the Board or could not
be discussed at a hearing but in my view if that
was to be done it was plainly an occasion, if the
procedure was to be fair, for advance notice that
the subject would be raised and failing such
advance notice for the Board not to sit and wait for
the appellant to object but to offer the appellant
an adjournment to consider his position with
respect to it. In my view it was plainly unfair to go
into the subject without prior notice and without
offering the appellant an adjournment to consider
his position. Moreover, while I agree with the
learned Trial Judge that there was no legal obliga
tion on the Board under Regulation 20.1 to apprise
the appellant of his right to counsel, it was in my
opinion a further aggravation of the unfairness in
the situation for the Board, knowing of the recent
amendment of the Regulations to confer such a
right, to refrain from apprising the appellant of it.
In my opinion the appellant's application for
certiorari should have been granted.
It was urged on behalf of the Board that the
Court in the exercise of its discretion should refuse
relief because there was an alternative remedy
open to the appellant under section 22 of the
Regulations which provides for a re-examination
of the decision by other members of the Board.
Such a re-examination is, however, no substitute
for certiorari to quash a decision made without
jurisdiction, it is not a procedure conducted on the
same principles and the Board's letter of May 13,
1981 states that the no recredit of remission deci
sion is not appealable.
I would allow the appeal, set aside the judgment
of the Trial Division and, in its place, order that
certiorari issue to remove the decision of the
Parole Board revoking the appellant's parole into
this Court and that the said decision and any
orders or warrants based thereon be quashed. The
appellant is entitled to costs of the appeal and in
the Trial Division.
HEALD J.: I concur.
RYAN J.: I concur.
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.