T-998-75
In re Donald Keith Nicholson and in re the Na
tional Parole Board
Trial Division, Mahoney J.—Halifax, April 15;
Ottawa, May 20, 1975.
Extraordinary remedies — Certiorari — Penitentiaries —
Inmate under mandatory supervision convicted of offences—
Parole Board revoking mandatory supervision—Applicant
denied opportunity to participate in Board's decision—Federal
Court Rules 319, 400, 603—Canadian Bill of Rights, S.C.
1960 c. 44 (R.S.C. 1970 App. III] s. 2(e).
A revocation of mandatory supervision is a decision within
the administrative discretion of the Board, and is not a judicial
determination, and not subject to review under section 28 of the
Federal Court Act. The Board did not violate any of applicant's
rights under the Canadian Bill of Rights, particularly under
section 2(e). The liberty of a paroled inmate is a privilege, not a
right, and deprivation of that liberty is not impeded by the
safeguards standing between the individual's rights and the will
of society.
Sherman and Ulster Ltd. v. Commissioner of Patents
(1974) 14 C.P.R. (2d) 177; Ex parte McCaud (1965) 1
C.C.C. 168 and Howarth v. National Parole Board (1975)
18 C.C.C. (2d) 385, followed.
APPLICATION.
COUNSEL:
P. Harvison for applicant.
D. Richard for respondent.
SOLICITORS:
Penitentiary Legal Services, Sackville N.B.,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This application was commenced
by originating notice of motion filed April 1, 1975
and was heard by me in Halifax on April 15.
Counsel had agreed in advance, subject to my
ruling, to submit written argument. I accepted
their agreement reluctantly, upon the urgent
representations of counsel for the applicant, in
view of the fact that the most adverse result, in the
absence of new facts, would be the applicant's
release on May 8. My reluctance proved well
founded; the written argument was not completed
until after that date and so, from a practical point
of view, my decision cannot benefit the applicant.
The respondent made a preliminary objection to
the commencement of proceedings for declaratory
relief by an originating notice of motion. I found
that objection to be well founded for the reasons I
gave, and do not now propose to repeat, in Sher-
man & Ulster Ltd. v. Commissioner of Patents.'
Suffice it to say that, in view of the amendment to
Rule 603 of the Rules of this Court which came
into effect March 6, 1973, 2 a proceeding for
declaratory relief must be brought by way of an
action under Rule 400 rather than by way of an
application under Rule 319. In view of this find
ing, which I rendered at the hearing, the applica
tion proceeded only in respect of certiorari.
The applicant was serving a two year sentence
that commenced October 26, 1972 when he was
released on mandatory supervision, pursuant to
section 15 (1) of the Parole Act,' on March 26,
1974. On September 23, 1974 his release on man
datory supervision was suspended and, on October
4, a warrant of committal consequent upon that
suspension was issued by a magistrate who, the
same day, on summary conviction, sentenced the
applicant to two concurrent three month terms, on
finding him guilty of offences under sections 233
and 295 of the Criminal Code'', i.e., failing to stop
at the scene of an accident and joy riding. On
January 13, 1975, the applicant was taken before a
magistrate and informed that his mandatory
supervision had been revoked by the National
Parole Board on December 17, 1974.
In respect of the Board's proceedings leading to
the decision to revoke his mandatory supervision,
the applicant was not
(1974) 14 C.P.R. (2nd) 177 at 179.
2 SOR/73-128.
R.S.C. 1970, c. P-2.
R.S.C. 1970, c. C-34.
(a) given prior written notice of the hearing;
(b) given an opportunity to be present at the hearing;
(c) given the opportunity to be represented by counsel;
(d) given the opportunity to examine the evidence upon
which the Board acted in reaching its decision;
(e) given the opportunity to submit evidence for the Board's
consideration;
(f) given the opportunity to make representations on his own
behalf.
The applicable provisions of the Parole Act are:
11. The Board, in considering whether parole should be
granted or revoked, is not required to grant a personal interview
to the inmate or to any person on his behalf.
15. (2) Paragraph 10(1)(e), section 11, section 13 and sec
tions 16 to 21 apply to an inmate who is subject to mandatory
supervision as though he were a paroled inmate on parole and
as though the terms and conditions of his mandatory supervi
sion were terms and conditions of his parole.
16. (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.
The Supreme Court of Canada, in Ex p.
McCaud 5 upheld a denial of habeas corpus exclu
sively on the ground that a revocation of parole
was a decision within the administrative discretion
of the Parole Board and was not, in any way, a
judicial determination. That Court, in Howarth v.
National Parole Board 6 , recently reaffirmed
McCaud in holding that such a decision was not
amenable to an appeal under section 28 of the
Federal Court Act'. Ex p. McCaud is also direct
authority against the applicant's submission that,
in proceeding as it did, the Parole Board violated
any right accruing to the applicant under the
Canadian Bill of Rights and, in particular, section
2(e) thereof.
5 (1965) 1 C.C.C. 168.
6 (1975) 18 C.C.C. (2nd) 385.
R.S.C. 1970, (2nd Supp.) c. 10.
... no law of Canada shall be construed or applied so as to
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations;
While the applicant's catalogue of complaints is
more detailed than found to exist in Ex p.
McCaud, the import is identical. The applicant has
been utterly denied the opportunity to influence in
any way a decision of the National Parole Board
that has prescribed his personal liberty. Consider
ing the Howarth decision as a whole, it seems that
the clear inference to be drawn from the rejection
by the Court of the position taken in the dissenting
judgment is that the liberty of a paroled inmate is
a privilege extended to him by our society through
the administrative mechanisms of the National
Parole Board and not a right to be enjoyed by him
as a member of our society. Hence, his deprivation
of that liberty through the same mechanisms is not
impeded by any of the safeguards that stand be
tween the individual and the collective will of
society to interfere with his rights.
The only basis upon which this application can
succeed is if I were to find that the Parole Board
had exceeded its jurisdiction in proceeding as it
did. I cannot make that finding. The application is
dismissed. There will be no order as to costs.
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.