T-957-83
Robert Walter Sango (Applicant)
v.
National Parole Board (Respondent)
Trial Division, Muldoon J.—Winnipeg, September
14; Ottawa, October 11, 1983.
Parole — Jurisdiction of National Parole Board — Whether
lacking or acting in excess of jurisdiction — Prohibition
sought against hearing to determine whether mandatory
supervision should be revoked while interrupted by consecutive
sentence — Whether applicant a paroled inmate — Board not
functus — Application denied — Parole Act, R.S.C. 1970, c.
P-2, ss. 10(1)(a),(e),(2) (rep. and sub. S.C. 1976-77, c. 53, s.
25(2)), 11 (rep. and sub. idem, s. 26), 13(1),(2) (rep. and sub.
idem, s. 27), 15(1) (rep. and sub. idem, s. 28(1)), (2),(3),(4) (as
added idem, s. 28(2)), 16(1),(2),(3) (rep. and sub. idem, s. 29),
(4),(5), 18 (rep. and sub. idem, s. 30) — Parole Regulations,
C.R.C., c. 1249.
Judicial review — Prerogative writs — Prohibition —
Whether jurisdiction in Parole Board to deal with or revoke
mandatory supervision while interrupted by consecutive sen
tence of imprisonment — Application denied.
While subject to mandatory supervision, the applicant com
mitted additional offences for which a consecutive sentence of
imprisonment was imposed. The applicant now seeks an order
prohibiting the National Parole Board from holding a hearing
to determine whether his mandatory supervision should be
revoked, and an order prohibiting its revocation without a
hearing. The applicant argues that subsection 15(4) of the
Parole Act overrides paragraph 10(1)(e) because he is not, in
effect, a paroled inmate since his mandatory supervision is
statutorily interrupted to be resumed only after the later sen
tence is served. In light of Greenberg v. National Parole Board
et al., the Board is not functus in regard to reconsidering the
matter of the applicant's mandatory supervision. Therefore, no
actual or apprehended acting without or in excess of jurisdic
tion in purporting to deal with it, nor any lack of jurisdiction to
revoke it during the currency of a consecutive sentence can be
demonstrated against the Board.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Greenberg v. National Parole Board et al. (1983), 48
N.R. 310; 10 W.C.B. 222 (F.C.A.).
DISTINGUISHED:
Oag v. R., et al., [1983] 3 W.W.R. 130 (Alta. Q.B.);
reversed by 33 C.R. (3d) 111 (Alta. C.A.); Noonan v.
National Parole Board, [1983] 2 F.C. 772 (C.A.).
COUNSEL:
Judy Elliott for applicant.
Brian H. Hay for respondent.
SOLICITORS:
Legal Aid Manitoba, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MULDOON J.: The applicant seeks an order
prohibiting the respondent from convening or con
tinuing a hearing for the purpose of deciding
whether or not to revoke his mandatory supervi
sion, and an order prohibiting the respondent from
revoking his mandatory supervision without a
hearing.
By his affidavit sworn on April 19, 1983, the
applicant describes himself as a prisoner in Stony
Mountain Institution in Manitoba. His counsel
says that the applicant was recently transferred to
the Saskatchewan Penitentiary. It appears from
the applicant's affidavit that on October 1, 1982
he was released from Stony Mountain Institution
on mandatory supervision and proceeded thence
into Winnipeg. On December 12, 1982 he was
charged with theft under $200; possession of goods
obtained by crime; and false pretences under $200.
That same day, bail on these charges was denied
and he remained in custody. The next day, a
warrant was issued, pursuant to sections 16 [as
am. by S.C. 1976-77, c. 53, s. 29] and 18 [rep. and
sub. idem, s. 30] of the Parole Act, R.S.C. 1970, c.
P-2, suspending the applicant's mandatory supervi
sion purportedly "to prevent a breach of a term or
condition of Parole".
The applicant was then returned to Stony
Mountain Institution where, he says, that on or
about February 4, 1983, he appeared before the
respondent Board for a post -suspension hearing
apparently pursuant to subsection 16(4) of the
Act. Thereupon, by an order signed on February 8,
1983, the Board, through a person designated by
its Chairman, ordered that the suspension of the
applicant's mandatory supervision which had been
effected on the previous December 13, be can
celled. The applicant was then again in the status
of mandatory supervision, which, by subsection
15(2) of the Act applied to him "as though he
were a paroled inmate on parole and as though the
terms and conditions of his mandatory supervision
were terms and conditions of his parole."
Despite the restoration of his mandatory super
vision, the applicant exercised his statutory right
pursuant to subsection 15(3) of the Act [as added
by S.C. 1976-77, c. 53, s. 28], by choosing to
remain in the institution. His notice to the institu
tion's sentence administrator, a copy of which is
Ex. "C" to his affidavit says: "Therefore, I do not
-wish to be released on mandatory supervision at
this time". The document is dated February 7,
1983. The sentence administrator's comments,
apparently typed on that notice are:
As per Sect. 15 (3) of the Parole Act an inmate may choose to
serve his Mandatory Supervision period in custody. However,
once the inmate has been released on M.S., suspended, suspen
sion later cancelled, he no longer has the option to remain [in]
the institution to serve his M.S. in custody.
However, the applicant did not remain in Stony
Mountain Institution, but was taken into custody
at the custodial facility in the Public Safety Build
ing in Winnipeg, there to await disposition of the
charges levied against him the previous December.
On February 23, 1983, the applicant pleaded
"guilty" to the December charges before His
Honour Judge M. Baryluk of the Provincial Court
(criminal division), who thereupon imposed a sen
tence of one year consecutive to the sentence which
the applicant was, and is, serving.
The applicant says that before pleading "guilty"
to those charges, he had spoken with his parole
officer who indicated to him that the respondent
wished to have nothing further to do with him, and
that he would therefore serve his time in the
provincial institution if he were to plead "guilty".
The applicant does not purport to offer a direct
quotation of the parole officer's very words, but,
understandably offers an indirect quotation. Of
course, the parole officer could presumably not
foresee, at the time before the applicant pleaded,
what sentence would be imposed by the Court.
Following the imposition of that one-year con
secutive sentence by Judge Baryluk, the applicant
was taken to the provincial Headingley Correc
tional Institution where he was kept for about one
and a half weeks, whence he was returned to Stony
Mountain Institution. There, he was told by his
parole officer that he would again be coming
before the respondent Board, and that his manda
tory supervision would probably be revoked.
In consequence of the events described, the
applicant seeks an order of prohibition against the
respondent. The grounds asserted in the appli
cant's originating notice of motion are:
1. That the Respondent, THE NATIONAL PAROLE BOARD, is
acting without or in excess of jurisdiction in purporting to deal
with the Applicant's mandatory supervision while the Appli
cant's mandatory supervision is interrupted by a consecutive
sentence of imprisonment.
2. That the Respondent, THE NATIONAL PAROLE BOARD, has
no jurisdiction to revoke the Applicant's mandatory supervision
during the currency of a consecutive sentence of imprisonment.
3. 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.
Counsel for the applicant says that the respond
ent, on June 2, 1983, issued a warrant to suspend
the applicant's mandatory supervision, and that
the warrant was executed at Stony Mountain
Institution on June 6, 1983. Such warrant is not
before the Court: it was mentioned only in oral
argument. That action was taken by the respond
ent some time after service of the applicant's origi
nating notice of motion with its affidavit in sup
port, on April 19, 1983, and the respondent risks
that its purported suspension of mandatory super-
vision could be voided in any adverse disposition
made in these proceedings.
A brief review of the statutory provisions and
jurisprudence is warranted in order to determine
whether the respondent Board is in the course of,
or can be reasonably apprehended to be, acting
without or in excess of its jurisdiction, or indeed,
whether it has no jurisdiction to purport to revoke
the applicant's mandatory supervision. Subsection
15(2) of the Parole Act has been noted. It deems
an inmate who is subject to mandatory supervi
sion, as is the applicant, to be a paroled inmate on
parole.
Other pertinent provisions of the Parole Act are
as follow:
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 consti
tute 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.
(2) [rep. and sub. S.C. 1976-77, c. 53, s. 25(2)] The Board or
any person designated by the Chairman may terminate a
temporary absence without escort granted to an inmate pursu
ant to section 26.1 or 26.2 of the Penitentiary Act or the day
parole of any paroled inmate and, by a warrant in writing,
authorize the apprehension of the inmate and his recommit-
ment to custody as provided in this Act.
11. [rep. and sub. idem, s. 26] Subject to such regulations as
the Governor in Council may make in that behalf, the Board is
not required, in considering whether parole should be granted
or revoked, to personally interview the inmate or any person on
his behalf.
13. [rep. and sub. idem, s. 27] (1) The term of imprisonment
of a paroled inmate shall, while the parole remains unrevoked,
be deemed to continue in force until the expiration thereof
according to law, and, in the case of day parole, the paroled
inmate shall be deemed to be continuing to serve his term of
imprisonment in the place of confinement from which he was
released on such parole.
(2) Until a parole is suspended or revoked, or a day parole is
terminated, or except in accordance with the terms and condi
tions of a day parole, 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.
15. (1) [rep. and sub. idem, s. 28(1)] Where an inmate is
released from imprisonment, prior to the expiration of his
sentence according to law, solely as a result of remission,
including earned remission, and the term of such remission
exceeds sixty days, he shall, notwithstanding any other Act, be
subject to mandatory supervision commencing upon his release
and continuing for the duration of such remission.
(3) [as added idem, s. 28(2)] Notwithstanding subsection
(1), an inmate who may be released subject to mandatory
supervision may choose to remain in the institution to complete
his sentence, but such a choice is not binding upon an inmate
who subsequently chooses to be released on mandatory supervi
sion; any subsequent choice to be released on mandatory super
vision shall be respected as soon as is reasonably possible,
however, the inmate may not require his release other than
during the daylight hours of a normal work week.
(4) [as added idem, s. 28(2)] Where an inmate subject to
mandatory supervision commits an additional offence for which
a consecutive sentence of imprisonment is imposed and manda
tory supervision is not revoked, the period of mandatory super
vision is interrupted and is not resumed until the later sentence
has been served.
16. [subss. (1) to (3) rep. and sub. idem, s. 29] (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.
18. [rep. and sub. idem, s. 30] When any parole is revoked,
the Board or any person designated by the Chairman may, by a
warrant in writing, authorize the apprehension of the paroled
inmate and his recommitment to custody as provided in this
Act.
Pursuant to section 11 of the Act, the Parole
Regulations [C.R.C., c. 1249] accord the inmate
the option to apply for a post -suspension hearing,
as the applicant's counsel noted in argument. The
Regulations also permit the inmate to make an
effective request that the Board re-examine a deci
sion to revoke mandatory supervision.
This is not a situation such as was described in
Oag v. R., et al.,' and in Noonan v. National
Parole Board 2 because this applicant was released
on October 1, 1982. After the suspension of his
mandatory supervision which occurred on Decem-
ber 13, 1982, was subsequently cancelled on Feb-
ruary 8, 1983, he opted pursuant to subsection
15(3) of the Parole Act. Despite that expressed
choice, the applicant was removed from Stony
Mountain Institution and into custody in Win-
nipeg, because bail was denied in regard to the
pending charges.
Having committed additional offences, after
release, for which a consecutive sentence of impris
onment has been imposed, and mandatory supervi-
[1983] 3 W.W.R. 130 (Alta. Q.B.), [reversed by] 33 C.R.
(3d) 111 (Alta. C.A.).
2 [1983] 2 F.C. 772 (C.A.).
sion is not revoked, as contemplated by subsection
15(4) of the Act, the applicant, apprehending that
the respondent Board is now moving to revoke it,
seeks to have the respondent prohibited from doing
that. He argues that as matters stand, his manda
tory supervision must be—and remain—interrupt-
ed, and not resumed until the later sentence has
been served. Counsel stresses that since the time at
which the suspension of mandatory supervision
was cancelled there has been no second release,
nor any post -release misbehaviour upon which to
base revocation of mandatory supervision. The
applicant's position is that subsection 15(4) over
rides paragraph 10(1) (e) because he is not, in
effect, a paroled inmate since his mandatory
supervision is statutorily interrupted to be resumed
only after the later sentence is served.
But surely the respondent Board was scrupu
lously correct in restoring the applicant's mandato
ry supervision during the time in which he was
merely charged with the offences alleged against
him in December, 1982. Due regard for the appli
cant's constitutional right to be presumed innocent
until proven guilty according to law, alone, if
nothing else were known of the applicant's behavi
our, would dictate prudence. Viewing those pend
ing charges per se, the respondent could not know
whether the outcome would be an acquittal, a
nolle prosequi, a finding of guilt, or, as actually
occurred, a "guilty" plea. It was only then that, in
regard to the pending charges, post -release behavi
our upon which revocation might be based was
ascertained.
Applicant's counsel urged that the legislation is
not clear enough to support the respondent Board's
application. That might well be an arguable propo
sition were it not for the Federal Court of Appeal's
unanimous decision in Greenberg v. National
Parole Board et a1. 3 Speaking for the Court, Mr.
Justice Pratte said [at page 314 N.R.]:
(1983), 48 N.R. 310; 10 W.C.B. 222 (F.C.A.).
A few observations are first in order. It is common ground
that the Board, when it revokes a parole, exercises an adminis
trative rather than a quasi-judicial power. It is also common
ground that the Board, in deciding whether or not to revoke a
parole, is bound, like all other administrative authorities, by the
rules of procedural fairness. Finally, both parties agree that,
under the Parole Regulations, the Board cannot revoke the
parole of an inmate without giving him an opportunity to be
heard.
Regarding the applicant's submission that the
provisions of paragraph 10(1) (e) are overridden by
subsection 15(4), the following passage by Mr.
Justice Pratte is apt [at page 313 N.R.]:
... according to the appellant, once a warrant of suspension of
a parole has been validly issued and cancelled, a second war
rant cannot subsequently be issued on the basis of the same
facts.
This argument is based on two false assumptions. The first
one is that s. 16 of the Parole Act is the source of the power of
the Board to revoke a parole. This is not true. The source of
that power is found in paragraph 10(1)(e) pursuant to which
"the Board may, in its discretion, revoke the parole of any
paroled inmate". Section 16, on the other hand, is the source of
the power to suspend a parole and it prescribes that once a
parole has been suspended, the matter must be submitted to the
Board in order for it to decide whether it will exercise its power
of revocation. It follows that an order of the Board revoking a
parole is not void for the sole reason that it was not preceded by
a valid suspension. The second erroneous assumption of the
appellant is that the Board, once it has decided a question, is
"functus" and cannot reconsider the matter or review its
decision. The Board, when it decides to suspend or revoke a
parole, exercises a purely administrative function. The principle
that normally prevents judicial or quasi-judicial authorities
from reconsidering a question that they have already decided
does not apply to purely administrative authorities. It does not
apply to the Board.
Since the respondent Board is not functus in
regard to reconsidering the matter of the appli
cant's mandatory supervision, no actual or
apprehended acting without or in excess of juris
diction in purporting to deal with it, nor any lack
of jurisdiction to revoke it during the currency of a
consecutive sentence, can be demonstrated against
the Board. No other basis for ordering prohibition
was demonstrated or alleged.
In accordance, then, with the principles enun
ciated in Greenberg v. National Parole Board et
al., supra, this application is denied.
ORDER
Motion dismissed with costs.
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