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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.
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