T-1428-89
Fauja Singh Bains (Applicant)
v.
National Parole Board (Respondent)
INDEXED AS: BAINS V. CANADA (NATIONAL PAROLE BOARD)
(T.D.)
Trial Division, Muldoon J.—Ottawa, July 18 and
August 1, 1989.
Parole — Board deciding to admit applicant to day parole,
subject to post-release conditions — Before decision imple
mented, Trial Judge, Crown Attorney and Attorney General
making further representations as to risk to society if appli
cant released — Applicant said to have threatened to shoot
Judge after release — Board Chairman instructing staff not to
release applicant until Board considering new information —
Motion for certiorari, mandamus and prohibition Although
Parole Act giving Board exclusive jurisdiction and absolute
discretion to grant or refuse parole, required to act fairly and
lawfully — Prospective employer's alleged association with
violent Sikh organization irrelevant to applicant's character,
temperament or potential for rehabilitation upon which deci
sion to grant parole made — Status of parolee acquired as
soon as decision to grant parole takes effect — Applicant's day
parole effective immediately, subject to post-release condi
tions — Certiorari, quashing Board's compliance with Chair-
man's unlawful action and mandamus, requiring Board to
implement decision, granted.
Judicial review — Prerogative writs — Motion for man-
damus, prohibition and certiorari to quash Parole Board
Chairman's decision not to release applicant on parole until
new information considered, to implement Board decision to
release applicant on day parole subject to conditions and to
prevent Board from reviewing latter decision — Although no
specific statutory authority to reconsider own decision, Parole
Act, s. 13 giving Board exclusive jurisdiction and absolute
discretion to grant or refuse parole — Required to act fairly
and lawfully — Chairman considering irrelevant information
as to alleged involvement of prospective employer with violent
Sikh organization — In purporting to stay or nullify regularly
formulated decision to grant day parole, Board unfairly
exceeding jurisdiction — Motion allowed.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Parole Act, R.S.C., 1985, c. P-2, s. 13 (as am. by R.S.C.,
1985 (2nd Supp.), c. 35, s. 4).
CASES JUDICIALLY CONSIDERED
APPLIED:
Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459; 30
C.C.C. (3d) 129; Hay v. National Parole Board, 13
Admin. L.R. 17; 21 C.C.C. (3d) 408; 18 C.R.R. 313
(T.D.); Oag v. The Queen et al., [1983] I S.C.R. 658.
COUNSEL:
Elizabeth Thomas for applicant.
Brian R. Evernden for respondent.
SOLICITORS:
Elizabeth Thomas, Ottawa, 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 is an inmate of the
Frontenac Institution at Kingston, Ontario. He is
serving a term of 18 years' imprisonment to which
he was sentenced by the Ontario Court of Appeal
in reduction of a life term imposed by the Trial
Judge upon the applicant in consequence of his
having been convicted of three counts of attempted
murder on June 8, 1983.
The applicant's convictions arose out of his
criminally deliberate discharge of a firearm during
a public demonstration by rival Sikh factions in
Toronto which took place in November, 1982.
Three persons, including a police constable, were
seriously injured by bullets fired by the applicant
and a similarly guilty accomplice. The Trial Judge
and the unanimous panel of the Ontario Court of
Appeal found that they came to the event already
armed with pistols.
The applicant became eligible to be released on
a day parole on June 7, 1987, and a full parole on
June 7, 1989. On June 23, 1989, a panel of the
National Parole Board (hereinafter: the Board),
after hearing the applicant's proposed alternative
and preferred plans for release, and upon consider
ing the supportive community assessment report
prepared by the Correctional Service of Canada
(hereinafter: the CSC) decided to admit the appli
cant to day parole to a half-way house in the
Peterborough area in order to take up employment
with his community contact, one Darshan Singh
Saini (sometimes spelled "Saino"). The Board in
effect acceded to the applicant's preferred plan.
It must here be emphasized, as it will later
become apparent, that no part of the present pro
ceedings involves any application of any kind of
judicial review of the Board's conduct in according
the above-mentioned day parole to the applicant.
The Board's decision to do that must, in terms of
these proceedings, be accepted to have been, and
to be, just as correct and justifiable in law as were
the initial convictions and the ultimate imposition
by the Court of Appeal of an apt term of imprison
ment, for those previous adjudications are not
called into question here, either.
Ordinarily, it requires a few or several days in
which to implement a Board's decision releasing
an inmate on parole. Police and correctional
authorities must be advised of the inmate's
impending release, and confirmation of the
inmate's exterior accommodation and employment
must be effected.
During the time in which the Board's staff were
in the course of implementing its decision, further
representations were made to the Board's Chair
man and its Ontario Regional Director. Those
representations were made by the Trial Judge, the
Attorney General and the Deputy Attorney Gener-
al of Ontario, and the prosecuting Crown Attor
ney. Copies of some of their letters, but not all, are
annexed as exhibits to the affidavit of Simonne
Ferguson, the Board's Regional Director for
Ontario. In the prosecuting Crown Attorney's
letter, clearly marked "Private and Confidential",
but now in the public domain, a copy of which is
exhibit A to Ms. Ferguson's affidavit, the Crown
Attorney, after quoting from the grisly facts of the
applicant's offence recited by the Ontario Court of
Appeal, goes on to state:
... this trial was conducted under the heaviest security ever
seen in Toronto, mainly because of threats made by Bains to
the witness, the Judge and the prosecution. After conviction,
and before sentence, Bains reportedly told another inmate
(whom I and the police later interviewed) that it didn't matter
what sentence the Judge imposed because he (Bains) would be
released sometime and he could simply return to the Courtroom
when there was no security, and shoot the Judge.
The Crown Attorney characterized the Board's
decision to admit the applicant to day parole as
"unbelievably bad". Other negative representa
tions were received from the Mayor of Peterbor-
ough and that city's Deputy Chief of Police, copies
of which are exhibited with Ms. Ferguson's
affidavit.
A copy of the copy of that document which was
before the Board, titled "Progress summary
appraisal and recommendation" prepared by the
Correctional Service of Canada, Frontenac Institu
tion, on May 24, 1989, is exhibit E to the appli
cant's affidavit. Although clearly stated to be
"protected when completed", it too is now in the
public domain. That report contains a particula
rized printed form on recidivism which, as com
pleted, shows that the applicant's score of +10
— 3, or +7, indicates that 4 of every 5 offenders
will not commit an indictable offence after release.
It represents an attempt, and perhaps the best
which can be effected, to import the science of
statistical analysis in order to dress up what, in the
last true analysis, amounts only to would-be clair
voyance. Such, in the minds of many, is the unhap
py role of the Board and it naturally generates
anxiety lest the inmates whom the Board admits to
parole should sooner or later go wrong, thus expos
ing Board members to public sentiments which
characterize them as negligent or incompetent. It
needs no emphasis to realize that the Board
(whose institutional abolition was recommended
by the Law Reform Commission of Canada in
1976) continues to perform its difficult tasks as
best it can, and most probably, as well as those
tasks can be performed. In any event, it may be
noted that the applicant's accomplice, Gurraj
Singh Grewal, whose term was reduced from 14
years imprisonment to 9 years, has been released
on full parole in Kingston and seems to be still
peaceably at large.
A copy of the "Board members' comment
sheets" is exhibit B to the applicant's affidavit.
The panel's reasons are set out as follows:
In granting you day parole, we considered the following—the
seriousness of the offence, your progress in the institution, your
criminal record, and the professionals. You have demonstrated
in the past that you can be a good, productive citizen. We
believe that the offence could be considered situational, and the
psychiatrist suggests the same.
You have been in minimum security for 9 months, all reports
positive. While at Joyceville you had fence clearance. You have
successfully completed 42 Escorted Temporary Absences. You
have shown in the past that you were sorry for your actions,
and the hurt it caused to the victims and their families. You
have accepted fully, responsibility for your actions. You have
made good use of your time in the institution. There are no
problems of substance abuse. You have earned the support of
the Case Management Team and the Warden. Today at the
hearing, a former Case Management Team member [named],
appeared on your behalf. The police view day parole in the best
interest of the community. At the time of sentencing the Judge
saw you as a good prospect for rehabilitation. You have excel
lent community support, wife and children, and confirmed
employment. We believe that the risks of granting you a
structured release such as day parole are assumable.
Whether those Board members knew of the
applicant's threat to murder the Trial Judge, prior
to sentencing in 1983 in the stark terms related by
the Crown Attorney, or not, they nevertheless
prudently imposed the following special conditions
to the day parole release:
1. You are not to contact, in any manner, either directly or
indirectly, any court or other government official involved with
the criminal proceedings leading to your current conviction and
sentence.
2. Not to contact or in any way attempt to contact "Gurraj
Singh Grewal", your co-accused.
3. No travel outside of Peterborough County without Board
authority.
These conditions are imposed upon you in order to give you
every opportunity to rehabilitate and re-integrate into society.
Your choice of a new area of surroundings in my opinion was a
wise decision.
The respected Chairman of the Board submitted
his affidavit in these proceedings in order to set out
his position in this matter. Paragraph 6 of that
affidavit encapsulates that position thus:
6. In my view, the Board has a continuing obligation to review
the status of persons under its jurisdiction to ensure that any
risk that they might pose to society is considered in light of the
best and most current information available. In view of the
representations made by senior law officers of the Crown,
including the Attorney General of Ontario—which submissions
are highly unusual—I concluded that it was necessary for the
protection of society and the rehabilitation of the Applicant
that the Board receive and consider that information which
might not have been available to the Board when it considered
the Applicant's case on June 23, 1989. I accordingly instructed
my staff not to effect the release of the Applicant until the
Board had an opportunity to consider the new information
which the law enforcement officials had assured me was
available.
In moving the Court for certiorari to quash the
Chairman's decision, for mandamus to compel the
Board to implement its decision of June 23, 1989,
forthwith, and for prohibition to prevent the Board
from instituting any review of its said decision, the
applicant's counsel asserts as the grounds for such
relief that: the Board has no jurisdiction to review
its decision of June 23, 1989; the Board's [and/or
the Chairman's] decision so to review was arbi
trary and capricious; and that decision is valid and
ought to be enforced.
Both opposing counsels concur, and in this they
appear to be quite correct, that neither the Chair
man nor the Board has any specific statutory or
regulatory authority to do precisely what the
Chairman purported to do here. However, the
respondent's counsel did urge that the Board may
act through its chairman and chief executive offi-
cer in exercising the powers and duties conferred
upon it by section 13 of the Parole Act, R.S.C.,
1985, c. P-2 [as am. by R.S.C., 1985 (2nd Supp.),
c. 35, s. 4] [hereinafter: the Act] which runs thus:
13. 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 and to terminate or revoke
parole or to revoke release subject to mandatory supervision.
Despite the "exclusive jurisdiction and absolute
discretion", both of them must be wielded fairly
and lawfully, meaning at least within the jurisdic
tion conferred upon the Board. Since the Board
here cleaves to the directions issued by its Chair
man, its actions in apparently nullifying its own
quorum's decision on June 23, 1989, renders those
actions reviewable pursuant to this Court's supe
rintending powers to achieve or to impose fairness
and legality if such be breached in the premises.
The applicant's counsel states that the corre
spondence received by the Chairman and by the
Regional Director furnished no new information to
the Board and in any event no new information
which can be fairly levied against the applicant to
his detriment. The respondent's counsel points to
the information conveyed in the partly illegible
copy of an undated newspaper article attached to
exhibit C of Simonne Ferguson's affidavit to the
effect that the applicant's prospective employer,
Darshan Singh Saini, had been described at the
time the article was published as "Canadian
Babbar Khalsa leader". The applicant, through his
counsel, both before and at the hearing offered
unreservedly to accept as a strict condition of his
day parole the prohibition of his associating with
or contacting in any way the said Darshan Singh
Saini.
The past or present associations of Mr. Saini
with any violently radical or other Sikh association
which imports its old-country hatreds into Canada
is certainly not shown to be new information.
More to the point, there is nothing which the
applicant can do about it, apart from abjuring any
association or other contact or communication
with Mr. Saini, and this he does and will do. Mr.
Saini's activities whether nefarious or not, have no
bearing upon the applicant's character, tempera
ment or potential for rehabilitation upon which the
Board made its decision to admit him to day
parole in a half-way house. Therefore, absent any
legislative provision akin to that which Parliament
recently specifically enacted to permit the Board
to effect "gating" in the cases of certain inmates
who are statutorily admitted to mandatory super
vision, the action of the Board and its Chairman in
purporting to stay or nullify the regularly formu
lated decision to grant the applicant day parole
must be characterized as unfairly exceeding the
Board's jurisdiction.
The Board's previous breach of its jurisdiction in
the analogous instance of gating is illustrated in
the decision Oag v. The Queen et al., [1983] 1
S.C.R. 658, whereby the Supreme Court of
Canada unanimously held that gating was illegal.
As noted, Parliament has subsequently acted to
make the procedure legal and within the Board's
jurisdiction. This Court, in Hay v. National Parole
Board, 13 Admin. L.R. 17; 21 C.C.C. (3d) 408; 18
C.R.R. 313, illustrated the unfairness of transfer
ring a prisoner from a farm institution to the
penitentiary proper for considerations extraneous
to the prisoner's conduct, character and progress in
the institution. So it is in the instant case. The
considerations shown herein to have been invoked
by the Board's Chairman are extraneous to the
Board's lawfully formulated conclusions about the
applicant's character, conduct and progress toward
apparent rehabilitation.
The Court expresses no opinion as to whether
the chairman ought to be accorded the power to
nullify a decision of the Board in circumstances in
which he, or outside political or justice-system
officials, consider that such decision evinces want
of care or competence on the Board's part in
deciding to admit an inmate to parole. Such a
consideration, which itself involves diverse opinion,
is for Parliament.
However, unless and until Parliament be moved
to enact some such provision, the law as it stands is
that which the Supreme Court of Canada unani
mously stated in Dumas v. Leclerc Institute,
[1986] 2 S.C.R. 459; 30 C.C.C. (3d) 129. Where,
in that case Mr. Justice Lamer writes of the
remedy of habeas corpus, his ideas can equally be
applied to the remedy of certiorari in this case. At
pages 464 S.C.R.; 133 C.C.C. Lamer J. is reported
thus:
In the context of parole, the continued detention of an inmate
will only become unlawful if he has acquired the status of a
paiplee. An inmate acquires that status as of the moment the
decision to grant him parole takes effect. Thus, if parole is
granted effective immediately, he becomes a parolee when the
decision is rendered. If, for some reason, the restriction to his
liberty continues, he may then have access to habeas corpus. If
parole is granted effective at some later date, then the inmate
acquires the status of parolee at that date and not at the date of
the decision. Similarly, where a decision is made to grant parole
but it is subject to the fulfilment of a condition, the inmate only
becomes a parolee if and when the condition is fulfilled. If he is
not released on parole when the term arrives or the condition is
fulfilled, then he may resort to habeas corpus. Finally, if parole
is refused, it is obvious that the inmate has not become a
parolee and he cannot have recourse to habeas corpus to
challenge the decision.
In the instant case the applicant was admitted to
day parole effective immediately on June 23, 1989,
subject to the above recited conditions of post-
release conduct which he accepts. He invites the
Board to make the further above-mentioned condi
tion to which he will not object. It is clear however
that in view of the Board's doing nothing to pre
vent the Chairman's imposition of the restriction
upon the applicant's liberty in order to wipe out
the Board's decision and to hold a further hearing,
the applicant is entitled to have access to certiorari
to quash the Board's compliance with the Chair-
man's unlawful action, and to have access to man-
damus requiring the Board to implement its deci
sion of June 23, 1989.
In view of the Board's unfairness and lack of
jurisdiction which the Court finds herein, these
orders will be pronounced, together with an order
prohibiting the Board from doing anything adverse
to the applicant's day parole except in accordance
with law as stated in the Act and in these reasons.
The respondent is ordered to pay the applicant's
party-and-party costs of and incidental to these
proceedings.
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.