A-276-83
Patrick Noonan (Appellant)
v.
National Parole Board (Respondent)
Court of Appeal, Pratte, Ryan JJ. and Lalande
D.J.—Montreal, March 17; Ottawa, March 24,
1983.
Parole — Release under mandatory supervision — Meaning
of "an inmate who is subject to mandatory supervision" —
National Parole Board Chairman not having power to suspend
prior to inmate's release — Whether suspension must be based
on events following release — Certiorari granted quashing
warrant suspending mandatory supervision — Parole Act,
R.S.C. 1970, c. P-2, ss. 15 (as am. by S.C. 1976-77, c. 53, s.
28), 16 (as am. idem s. 29) — Penitentiary Act, R.S.C. 1970, c.
P-6 (as am. by S.C. 1976-77, c. 53, s. 41), ss. 24, 24.1, 24.2.
A convict's penitentiary term was to expire on November 5,
1986. Under the relevant legislation, he was entitled to be
released on mandatory supervision on December 3, 1982. On
the last-mentioned date the Chairman of the National Parole
Board, purporting to act under subsection 16(1) of the Parole
Act, signed a warrant suspending the appellant's mandatory
supervision and authorizing his further custody. The Trial
Division rejected the convict's application for an order in the
nature of certiorari quashing the warrant. The issue raised
upon the appeal is as to whether the Board Chairman had
authority under the Act to suspend the appellant's release
under mandatory supervision.
Held, the appeal should be allowed and the application
granted.
Two submissions were put forward by the appellant: (1) the
power of suspension of an inmate's release under mandatory
supervision can be exercised only after his release; (2) exercise
of the power must be based on events following release.
It was clear from the wording of subsections 15(1) and (2) of
the Act that the Board was without power to suspend release
under mandatory supervision before the inmate's release. Prior
to that time, the convict is not "an inmate who is subject to
mandatory supervision". The argument that an inmate entitled
to release is, in the eyes of the law, released and subject to
mandatory supervision even though still detained, could not be
accepted.
The appellant's initial submission having been agreed with, it
was unnecessary that the Court express an opinion on the
second.
CASES JUDICIALLY CONSIDERED
APPLIED:
Oag v. R., et al, [1983] 3 W.W.R. 130; 24 Alta. L.R.
(2d) 274 (Q.B.).
REFERRED TO:
Re Moore and The Queen (1983), 41 O.R. (3d) 271; 33
C.R. (3d) 99 (C.A.).
COUNSEL:
Fergus O'Connor for appellant.
I. G. Whitehall, Q.C., for respondent.
SOLICITORS:
Correctional Law Project, Faculty of Law,
Queen's University, Kingston, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: The appellant was an inmate of a
penitentiary where he was serving sentences of
imprisonment for a term which was due to expire
on November 5, 1986. Pursuant to sections 24,
24.1 and 24.2 of the Penitentiary Act' and subset
' R.S.C. 1970, c. P-6 [as am. by S.C. 1976-77, c. 53, s. 41].
24. (1) Subject to section 24.2, every inmate may be
credited with fifteen days of remission of his sentence in
respect of each month and with a number of days calculated
on a pro rata basis in respect of each incomplete month
during which he has applied himself industriously, as deter
mined in accordance with any rules made by the Commis
sioner in that behalf, to the program of the penitentiary in
which he is imprisoned.
(2) The first credit of remission pursuant to subsection (I)
shall be made not later than the end of the month next
following the month the inmate is received into a penitentia
ry, or, if he had been so received before the coming into force
of this subsection, not later than the end of the month next
following the month in which this subsection comes into force
and thereafter a credit of remission shall be made at intervals
of not more than three months.
24.1 (1) Every inmate who, having been credited with
earned remission, is convicted in disciplinary court of any
disciplinary offence is liable to forfeit, in whole or in part, the
earned remission that stands to his credit and that accrued
after the coming into force of this section, but no such
forfeiture of more than thirty days shall be valid without the
concurrence of the Commissioner or an officer of the Service
designated by him, or more than ninety days without the
concurrence of the Minister.
(2) The Governor in Council may make regulations pro
viding for the appointment by him or by the Minister of a
person to preside over a disciplinary court, prescribing the
duties to be performed by such a person and fixing his
remuneration.
(Continued on next page)
tion 15(1) of the Parole Act, 2 he was entitled to be
released on December 3, 1982, to serve the balance
of his sentence under mandatory supervision.
However, instead of being released on that day, he
was simply transferred by the R.C.M.P. to another
federal penitentiary. That was done because, on
the same day, the Chairman of the National
Parole Board, purporting to act pursuant to sub
section 16(1) of the Parole Act, 3 had signed a
warrant suspending the appellant's mandatory
(Continued from previous page)
24.2 An inmate who has been credited with statutory
remission is not entitled to earned remission pursuant to
subsection 24(1) beyond the date when the aggregate of
(a) the maximum number of days of statutory remission
with which he was at any time credited under this Act and
under the Prisons and Reformatories Act in respect of the
term he is then serving,
(b) the number of days of any earned remission standing to
his credit that accrued before the coming into force of this
section, and
(c) the maximum number of days of earned remission with
which he was at any time credited pursuant to subsection
24(1)
equals one-third of the sentence he is then serving.
2 R.S.C. 1970, c. P-2 [as am. by S.C. 1976-77, c. 53, s. 28].
15. (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, notwith
standing any other Act, be subject to mandatory supervision
commencing upon his release and continuing for the duration
of such remission.
3 Subsection 16(1) [as am. by S.C. 1976-77, c. 53, s. 29]
authorizes a member of the Board to suspend a parole; by
virtue of subsection 15(2), that power of suspension applies to
mandatory supervision:
15....
(2) Paragraph 10(1)(e), section 11, section 13 and sections
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
supervision were terms and conditions of his parole.
16. (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 beèn
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.
supervision and authorizing his apprehension and
commitment to custody. The appellant applied to
the Trial Division for an order in the nature of
certiorari quashing that warrant. He contended
that, in the circumstances, the Chairman of the
Board had no authority to suspend his release
under mandatory supervision. This appeal is
directed against the decision which rejected that
application. It raises but one issue: had the Chair
man of the Board the authority under the Parole
Act to suspend the appellant's release under man
datory supervision?
It is common ground that the National Parole
Board and its members have no authority to grant
or refuse to grant permission to an inmate to be
released under mandatory supervision. Once an
inmate has been imprisoned for a period equal to
the length of his sentence less the number of days
of remission then standing to his credit pursuant to
section 24 and following of the Penitentiary Act,
he then is entitled, as of right, to be released on
mandatory supervision. Neither the National
Parole Board nor its members have any part to
play in the granting of that right. The only power
of the Board and its members in relation to man
datory supervision is the power of suspension and
revocation flowing from subsection 15(2) of the
Parole Act.
The sole issue on this appeal is whether the
Chairman of the National Parole Board, pursuant
to subsection 15(2) and subsection 16(1) of the
Parole Act, had the authority to suspend the
appellant's release under mandatory supervision.
The appellant challenges neither the Chairman's
good faith nor the fairness or regularity of the
procedure he followed in reaching the conclusion
that the protection of society required that the
appellant remain incarcerated. His sole contention
is that the Chairman could not, in the circum
stances, exercise the power of suspension conferred
on him by subsections 15(2) and 16(1). That
contention is based on two submissions: first, that
the power of suspension of an inmate's release
under mandatory supervision can only be exercised
after the release of the inmate; 4 second, that the
exercise of that power must be founded on facts
that have occurred after the inmate's release under
mandatory supervision.'
The appellant's first submission is that, on
December 3, 1982, his release subject to mandato
ry supervision could not be suspended pursuant to
subsections 15(2) and 16(1) of the Parole Act
because, at that time, he had not yet been released
and was not subject to mandatory supervision.
In my view, the text of subsections 15(1) and
(2) of the Parole Act shows that neither the
National Parole Board nor its members have the
power to suspend the release under mandatory
supervision of an inmate who has not yet been so
released. Subsection 15(2) does not simply say
that the power to suspend a parole found in section
16 applies to mandatory supervision; it provides
that that power of suspension applies "to an
inmate who is subject to mandatory supervision as
though he were a paroled inmate on parole". The
power of suspension, therefore, does not apply to
an inmate who is not subject to mandatory super
vision; more particularly, it does not apply to an
inmate who, though entitled to be released as a
result of remission, has not yet been released since
subsection 15 (1) makes clear that mandatory
supervision commences only upon the release of
the inmate.
Counsel for the respondent acknowledged that
the power of suspension conferred by subsection
15(2) can only be exercised after the inmate has
become subject to mandatory supervision. He
argued, however, that the inmate who is entitled to
be released as a result of remission is, ipso facto,
in the eyes of the law, released from imprisonment
and subject to mandatory supervision, even if, in
fact, he continues to be detained. I cannot accept
that argument. The prisoner who, though entitled
4 See Oag v. R., et al. [[1983] 3 W.W.R. 130; 24 Alta. L.R.
(2d) 274 (Q.B.)].
5 Re Moore and The Queen [(1983), 41 O.R. (3d) 271; 33
C.R. (3d) 99 (C.A.)].
to be released, is nevertheless kept in detention
cannot be said, either in law or in fact, to have
been released.
I am of opinion, therefore, that the appellant's
mandatory supervision was illegally suspended by
the Chairman of the National Parole Board
because that suspension took place when the appel
lant had not yet been released under mandatory
supervision. In view of that conclusion, I need not
express any opinion on the appellant's other sub
mission that, as decided by the Ontario Court of
Appeal in the Moore case (supra), the exercise of
the power of suspension of mandatory supervision
conferred by subsections 15(2) and 16(1) of the
Parole Act must be based on facts that took place
after the inmate has been released subject to man
datory supervision.
For these reasons, I would allow the appeal, set
aside the decision of the Trial Division and, pro
nouncing the decision that should have been ren
dered in first instance, I would grant the appel
lant's application and quash the decision to
suspend the appellant's mandatory supervision that
resulted, on December 3, 1982, in the issuance
against the appellant of a warrant of apprehension
and suspension of mandatory supervision.
RYAN J.: I agree.
LALANDE D.J.: I agree.
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.