A-275-91
National Parole Board (Respondent) (Appellant)
v.
Paul Pomerleau (Applicant) (Respondent)
and
Correctional Service Canada
and
Commission québécoise des libérations
conditionnelles (Mis en cause)
INDEXED AS: POMERLEAU Y. CANADA (NATIONAL PAROLE
BOARD) (CA.)
Court of Appeal, Marceau, Desjardins and Décary
JJ.A.—Montréal, December 4, 1991; Ottawa, January
14, 1992.
Parole — Appeal from Trial Division order granting certio-
rari against NPB decisions — Respondent, sentenced for
Criminal Code offences, transferred from federal penitentiary
to provincial prison — Released on mandatory supervision
under Parole Act, s. 21 and returned to federal penitentiary
system as of December 5, 1988 — Jurisdictional conflict
between NPB and Quebec Board — Whether NPB retaining
jurisdiction over convict despite Quebec Board's failure to
decide parole issue — Trial Judge erred in holding certificate
issued November 28, 1988 separate decision and that Quebec
Board, not NPB, had jurisdiction to make impugned decisions
— Release on mandatory supervision under Act, s. 21 and
release on parole distinguished — Origin and aim of both sys
tems explained — Trial Judge wrong in linking two systems
and making application of mandatory supervision conditional
on parole — Misinterpretation of word "solely" in Act, s.
21(1).
This was an appeal from an order of Denault J. finding that
the appellant lost jurisdiction in making the respondent subject
to mandatory supervision under subsection 21(1) of the Parole
Act, because the Commission québécoise des liberations condi-
tionnelles failed to grant respondent parole while he was under
its jurisdiction. Sentenced to fourteen years in penitentiary for
various Criminal Code offences, the respondent was trans
ferred, for security reasons, from a federal penitentiary to a
provincial prison on June 25, 1982 pursuant to the Prisons and
Reformatories Act, and to an agreement between the Govern
ment of Canada and the Government of Quebec; he remained
there until December 5, 1988. He became eligible for parole on
March 20, 1984, but the Quebec Board failed to make a deci
sion thereon, even though it was empowered to do so. Since
the provincial authority refused to deal with parole cases, the
Correctional Service of Canada prepared a report to the
National Parole Board recommending Pomerleau's conditional
release under Parole Act, paragraph 16(1)(b) as of December
5, 1988, the date of his return to the federal penitentiary sys
tem. The appellant made a number of decisions, all pertaining
to respondent's mandatory supervision, and which the latter
contested by way of certiorari on the ground that he could not
be subject to a mandatory supervision administered by the
appellant since such release applied to people who had been
refused parole, which was not his case. The Trial Judge
allowed the application for certiorari in its entirety, ruling that
the failure of the Commission québécoise des libérations con-
ditionnelles to decide the case of the respondent resulted in the
National Parole Board losing the right to make the respondent
subject to mandatory supervision.
Two issues were addressed to the Court herein: 1) whether
the Trial Judge was correct to treat the first two decisions of
the Parole Board, dated November 7 and 28, 1988, as being
different and 2) whether he was right in holding that, since the
Commission québécoise des libérations conditionnelles had
failed to deal with the respondent's parole, the National Parole
Board had lost the right to impose mandatory supervision on
him under subsection 21(1) of the Parole Act.
Held, the appeal should be allowed.
1) The decision dated November 7, 1988 refused the respon
dent the right to leave the country and work abroad, while the
parole certificate issued on November 28 gave effect to that
decision, attesting that the respondent would be released on
mandatory supervision on December 5, 1988. There is no
doubt, on the face of the document itself, that the November 7
decision took effect only on December 5, the date when the
inmate returned to the federal penitentiary system. If the appel
lant had jurisdiction on that date, it in no way infringed on the
jurisdiction of the provincial parole board. The Trial Judge
therefore erred in holding "that on those dates it was for the
Commission québécoise, and not the National Parole Board, to
decide such a request". Moreover, the certificate issued on
November 28, 1988, in accordance with subsection 18(1) of
the Act, was not a separate decision and could not be the sub
ject of certiorari.
2) An historical review of the provisions dealing with parole
and mandatory supervision indicates that application of section
21 of the Parole Act, which governs mandatory supervision, is
not conditional on release on parole. In Re Moore and the
Queen, the Ontario Court of Appeal defined mandatory super
vision as a procedure whereby an inmate, who has not been
granted parole, is released before the expiration of the sentence
imposed at a date set by statute and over which the National
Parole Board has no control. It should be pointed out that the
words "to whom parole was not granted" appearing in former
subsection 15(1) of the Parole Act have been deleted and
replaced by the word "solely" in the present subsection 21(1)
in order to clarify the definition of "mandatory supervision".
The formula established by section 25 of the present Act for
determining the date of release on mandatory supervision pro
duces a maximum earned remission of one third of the
sentence imposed by the Court, which means that an inmate
must theoretically serve two thirds of his sentence before being
released on mandatory supervision. As explained in Moore and
clarified in the Ouimet Report, the provisions dealing with
mandatory supervision were adopted for the purpose of reme
dying the situation preceding the enactment of the Criminal
Law Amendment Act, 1968-69, whereby anyone released by
reason of the provisions of the Penitentiary Act relating to
earned remission was not subject to the supervision of the
National Parole Board for the balance of his sentence. The aim
was to develop a system under which almost every convict
would be released under some form of supervision.
Parole is a completely separate system. It is defined in sec
tion 2 of the Parole Act as "authority granted under this Act to
an inmate to be at large during the inmate's term of imprison
ment and includes day parole". According to paragraph
16(1)(a) of the Act, it may be granted to an inmate, subject to
any terms or conditions the Parole Board considers reasonable.
The Trial Judge was obviously influenced by the wording of
section 15 of the Act itself, namely the words "the Board shall
review". He could not, however, link these two systems and
make the application of mandatory supervision conditional on
parole, since the words "solely as a result of remission, includ
ing earned remission, and the term of the remission exceeds
sixty days" in subsection 21(1) of the Act refer to earned
remission and have nothing to do with parole. Parliament's
intention as to the meaning of the word "solely" was not that
given by the Trial Judge. During consideration of Bill C-51 by
the Committee on Justice and Legal Affairs, the words "to
whom parole was not granted" were replaced by the word
"solely" to clarify the definition of "mandatory supervision". It
appears that some inmates to whom parole had been granted
but later revoked or forfeited claimed that they were not sub
ject to mandatory supervision because of the words "to whom
parole was not granted". Parliament's clear intention was
therefore to make the inmate subject to mandatory supervision,
even where parole has been granted and revoked. The same is
undoubtedly true where parole has never been granted.
Accordingly, the Trial Judge erred in holding that the National
Parole Board had no right to impose mandatory supervision on
the respondent because of the failure of the Quebec Board to
grant parole.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act to Promote the Parole of Inmates, R.S.Q., c. L-1.1,
s. 20.
Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c.
38, s. 101.
Criminal Law Amendment Act, /977, S.C. 1976-77, c. 53,
ss. 28(1), 40.
Federal Court Act, R.S.C., 1985, c. F-7, s. 2(g).
Parole Act, R.S.C. 1970, c. P-2, s. 15(1).
Parole Act, R.S.C., 1985, c. P-2, ss. 2, 12(1), 15(1) (as
am. by R.S.C., 1985 (2nd Supp.), c. 34, s. 3),
16(1)(a),(b), 18(1) (as am. idem, c. 35, s. 6), 19(1),
21(1),(2) (as am. by R.S.C., 1985 (2nd Supp.), c. 35, s.
10), 21.1 to 21.6 (as enacted by R.S.C., 1985 (2nd
Supp.), c. 34, s. 5), 22 to 25 (as am. by R.S.C., 1985
(1st Supp.), c. 27, s. 203; (2nd Supp.), c. 34, ss. 6, 7,
13; c. 35, ss. 11, 12), 26.
Parole Regulations, C.R.C., c. 1249, s. 5 (as am. by
SOR/79-88, s. 1), 19.1 (as am. by SOR/86-9l5, s. 5;
SOR/91-563, s. 18).
Penitentiary Act, R.S.C. 1970, c. P-6, s. 24.
Penitentiary Act, R.S.C., 1985, c. P-5, s. 25 (as am. by
R.S.C., 1985 (2nd Supp.), c. 34, s. 10).
Prisons and Reformatories Act, R.S.C., 1985, c. P-20, s. 5
(as am. by R.S.C., 1985 (2nd Supp.), c. 35, s. 31).
The Penitentiary Act of 1868, S.C. 1868, c. 75.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re Moore and The Queen (1983), 41 O.R. (2d) 271; 147
D.L.R. (3d) 528; 4 C.C.C. (3d) 206; 33 C.R. (3d) 99; 52
N.R. 258 (C.A.), affd sub nom. Oag v. The Queen et al.,
[1983] 1 S.C.R. 658; (1983), 41 O.R. (2d) 281; 52 A.R.
347; 147 D.L.R. (3d) 538; [1984] 2 W.W.R. 191; 29 Alta.
L.R. (2d) 1; 33 C.R. (3d) 97.
REVERSED:
Pomerleau v. Canada (National Parole Board),
(T-413-91, Denault J., order dated 25/3/91, not yet
reported).
REFERRED TO:
Truscott v. Director of Mountain Institution et al. (1983),
147 D.L.R. (3d) 741; 4 C.C.C. (3d) 199; 33 C.R. (3d) 121
(B.C.C.A.).
AUTHORS CITED
Canada, House of Commons, Standing Committee on Jus
tice and Legal Affairs. Minutes of Proceedings and Evi
dence. Issue No. 22 (June 16, 1977), at p. 22:100.
Cole, David P. and Manson, Allan. Release from
Imprisonment—The Law of Sentencing, Parole and
Judicial Review, Toronto: Carswell, 1990.
Report of the Canadian Committee on Correc-
tions—Toward Unity: Criminal Justice and Corrections
(Ottawa: Queen's Printer, 31 March 1969) (Chair: R.
Guimet).
COUNSEL:
David Lucas for respondent (appellant).
No one appearing for applicant (respondent).
SOLICITORS:
Deputy Attorney General of Canada for respon
dent (appellant).
Pierre Cloutier, Montréal, for applicant (respon-
dent).
The following is the English version of the reasons
for judgment rendered by
DESJARDINS J.A.: This is an appeal from a decision
of the Trial Division* dealing with the issue of
whether the appellant retains jurisdiction to decide
with respect to the respondent's mandatory supervi
sion under the authority of subsection 21(1) of the
Parole Act 1 (the "Act") because the Commission
* Editor's Note: The order of Denault J. herein was issued
on March 25, 1991 but not made public until April, 1992. The
Trial Division Court file number was T-413-91. The reasons
for order of Denault J. have not been selected for publication
in the Federal Court Reports as the facts of the case are suffi
ciently set out in the reasons for judgment of Desjardins J.A.
1 R.S.C., 1985, c. P-2:
21. (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 the remission exceeds sixty days, the inmate
(Continued on next page)
québécoise des libérations conditionnelles, mise en
cause herein, failed to grant the respondent parole
while he was under its jurisdiction.
The respondent was sentenced to fourteen years in
penitentiary on July 20, 1979, for various offences
under the Criminal Code. For security reasons, he
was transferred from a federal penitentiary to a pro
vincial prison on June 25, 1982, pursuant to section 5
of the Prisons and Reformatories Act, 2 and to an
agreement entered into between the Government of
Canada and the Government of Quebec on February
15, 1974. He remained there until December 5, 1988.
Beginning on June 25, 1982, he was granted tempo
rary absences, renewable every fourteen days, on a
continuous basis. According to section 16 of the
Parole Act and section 5 of the Regulations [Parole
Regulations, C.R.C., c. 1249 (as am. by SOR/79-88,
s. 1], he became eligible for parole on March 20,
1984. The Commission québécoise des libérations
conditionnelles, which was empowered to review the
parole records of inmates incarcerated in institutions
under subsection 12(1) of the Parole Act 3 and section
20 of An Act to Promote the Parole of
(Continued from previous page)
shall, notwithstanding any other Act, be subject to manda
tory supervision commencing on the inmate's release and
continuing for the duration of the remission.
2 R.S.C., 1985, c. P-20. S. 5 as am. by R.S.C., 1985 (2nd
Supp.), c. 35, s. 31] reads as follows:
5. (1) The Minister may, with the approval of the Gover
nor in Council, enter into an agreement with the government
of any province for the transfer of inmates from any peniten
tiary in Canada to any prison in that province.
(2) The Commissioner of Corrections or a member of the
Canadian Penitentiary Service designated by the Commis
sioner may direct transfers of inmates in accordance with
agreements entered into under subsection (I).
(3) An inmate transferred under this section or under an
agreement made pursuant to any other lawful authority shall
be deemed to be lawfully confined in the receiving prison
and is subject to all the statutes, regulations and rules appli
cable in the receiving prison.
3 12. (1) The lieutenant governor in council of a province
may appoint a Board of Parole for that province to exercise
parole jurisdiction, in accordance with this Act and the regula
tions, in respect of inmates detained in a provincial institution,
(Continued on next page)
Inmates, 4 failed to make a decision with respect to
the respondent's parole. However, he was to be
released on mandatory supervision, starting on
December 5, 1988, in accordance with section 21 of
the Parole Act. Given that the provincial authority
refused to deal with parole cases in the province, offi
cials of the Correctional Service Canada (CSC) pre
pared a report in order to present recommendations to
the appellant so that starting on December 5, 1988,
the day when the respondent returned to the federal
penitentiary system, he could be released on the con
ditions imposed by the appellant pursuant to para
graph 16(1)(b) of the Parole Act.
The appellant made a number of decisions which
were contested by the respondent via certiorari on
the ground that he could not be released subject to a
mandatory supervision administered by the appellant
since, according to him, such release applied to peo
ple who had been refused parole, which was not the
case in his situation since no authority had ever
reviewed his case. The decisions of the appellant
against which the application for certiorari was
brought were as follows: 5
(Continued from previous page)
other than inmates sentenced to life imprisonment as a mini
mum punishment, inmates in respect of whom sentences of
death have been commuted to life imprisonment or inmates
sentenced to detention in a penitentiary for an indeterminate
period.
4 R.S.Q., c. L-1.1, s. 20:
20. From the time an inmate is committed to a house of
detention, the commission is seized of right of his record
and examines it at the times fixed by regulation, unless he
renounces thereto in writing.
The commission may, upon application, examine the case
of an inmate whose parole it has previously refused or revo
ked. However, it is not bound to examine an application for
parole produced within six months following the decision to
refuse or to revoke parole, by an inmate whose sentence of
imprisonment is less than two years, nor an application pro
duced within two years of that decision, by an inmate whose
sentence of imprisonment is at least two years.
5 Appeal Book, at pp. 8 to 11. The expression "libération
sous surveillance obligatoire", which is found in some of the
appellant's decisions, was replaced by "liberté surveillée" in
accordance with the new French terminology found in the
(Continued on next page)
(a) A decision dated November 7, 1988, refusing
the respondent the right to leave the country and
work abroad; 6
(b) A parole certificate issued on November 28,
1988, giving effect to the decision of November 7,
1988, attesting that the respondent would be
released on mandatory supervision on December 5,
1988, in accordance with the conditions set out in
section 19.1 [as am. by SOR/86-915, s. 5; SOR/91-
563, s. 18] of the Regulations, reproduced on the
back of the certificate;?
(c) A decision dated February 13, 1989 authorizing
the respondent to leave Canada permanently; 8
(d) A decision dated June 8, 1989, amending the
conditions of mandatory supervision and providing
that the respondent was required to meet annually
with a representative of the Correctional Service
Canada and to maintain monthly contact with the
person responsible for his case in the anti-gang
section of the Montreal Urban Community police
department; 9
(e) A decision dated July 6, 1990, providing, inter
alia:
[TRANSLATION] Special conditions imposed:
— Refrain from associating with any person whom you
know to have a criminal record, or for whom you have
reason to believe that he/she has a criminal record, includ
ing members of your family who have criminal records.
(Mr. Pomerleau agrees to these special conditions of his
own free will.)
— Given that most of your problems are in general a result
of the fact that your brothers, as well as certain other peo
ple, incited you to commit criminal offences, the Board
believes that by imposing these conditions it might to
some extent protect you from negative influences and at
the same time might facilitate your social reintegration.
These special conditions will remain in effect until the
end of your sentence.m
(f) A decision dated August 3, 1990 authorizing
the respondent to travel to New York, in the United
(Continued from previous page)
Parole Regulations, C.R.C., c. 1249 (as am. by SOR/91-563),
26 September 1991.
6 A.B., at pp. 42 and 44.
7 A.B., at p. 47.
8 A.B., at pp. 49-50.
9 A.B., at pp. 57-58.
m A.B., at p. 72.
States, for purposes of his work, from August 6,
1990 to August 7, 1990. 11
The Trial Judge allowed the application in its
entirety. First, he gave the following explanation with
respect to the two decisions of November 7, 1988 and
November 28, 1988: 12
On November 7, 1988, the National Parole Board refused
the applicant the right to leave the country, which request had
been made to the Correctional Service Canada. The C.S.C.
issued a report which was favourable to the applicant, which
report was apparently sent to the National Parole Board. It
refused to grant the request. On November 28, 1988, the
National Parole Board also issued a mandatory supervision
certificate (R-10) setting the conditions of the applicant's
mandatory supervision, commencing on December 5, 1988. It
appears from the evidence (paragraph 8 of the affidavit of
Claude Barrette) that as of the mandatory supervision date "the
province would return the applicant to the federal system on
that date, given that the province refused to deal with
mandatory supervision cases in the province".
I believe that on these dates it was the Quebec Commission
and not the National Parole Board which should have decided
such a request. Under the terms of section 6 of the feder-
al/provincial agreement signed in 1974, the parties covenanted
and agreed "that, to the extent permitted by law, persons whose
custody is transferred pursuant to clause 1 or clause 2 of this
agreement shall, during such custody, be subject in all matters
to the jurisdiction of the lawful authorities of the party hereto
to whom such custody has been transferred". (Emphasis
added.) Undoubtedly section 13 of the Act gives exclusive
jurisdiction to the National Parole Board with respect to grant
ing or refusing parole or escorted temporary absences, but the
beginning of the section provides that this power must be exer
cised "subject to this Act", which clearly includes section 12.
An inmate incarcerated in a provincial institution which has
appointed a board of parole is therefore subject to that board.
The National Parole Board therefore erred in making decisions
on November 7 and 28 with respect to the applicant.
He continued:
Subsequently, on February 13, 1989, June 8, 1989, July 16,
1990 [sic] and August 3, 1990, the National Parole Board
made certain decisions with respect to him under the terms of
which he was refused the right to leave the country perma
nently and was required to meet annually with a representative
of the Correctional Service Canada and to maintain monthly
contact with the person responsible for his case. The last deci-
11 A.B., at p. 72.
12 A.B., at pp. 101-103.
sion (August 3, 1990) permitted him to go to New York for
purposes of his work, in response to a request by him for such
permission.
All these decisions, even the decisions dated November 7
and 28, 1988, were the subject of an application for certiorari
based on a narrow interpretation of subsection 21(1) of the
Parole Act. This section reads as follows:
21. (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 the remission exceeds sixty days, the inmate
shall, notwithstanding any other Act, be subject to
mandatory supervision commencing on the inmate's release
and continuing for the duration of the remission. [Emphasis
added.]
We should also take note of section 21.1 [R.S.C., 1985, c. 34
(2nd Supp.), s. 5], also reproduced as an annex:
21.1 Remission is credited, in accordance with the Peniten
tiary Act and the Prisons and Reformatories Act, against the
sentence being served by an inmate and entitles the inmate
to be released from imprisonment prior to the expiration of
the sentence according to law unless the Board directs pur
suant to paragraph 21.4(4)(a) that the inmate shall not be so
released. [Emphasis added.]
According to the applicant, mandatory supervision applies to
an inmate who is released prior to the expiration of the
sentence according to law, solely as a result of remission,
including earned remission, and the term of the remission
exceeds sixty days, that is, to an inmate who has been refused
parole or who has waived parole in writing.
I believe that in this case the failure or neglect of the Com
mission québécoise des libérations conditionnelles to decide
the case of the applicant, who was an inmate in a provincial
prison and under its jurisdiction, when it was obliged to do so
under sections 12 and 15 of the Parole Act and under its own
enabling legislation, resulted in the National Parole Board los
ing the right to make the applicant subject to mandatory super
vision as set out in section 21 of the Act cited above.
He then examined section 21 of the Parole Act and
mandatory supervision: 13
Section 21, which deals with mandatory supervision, applies
to everyone who was sentenced to imprisonment in or trans
ferred to a penitentiary on and after August 1, 1970. This is the
substance of subsection 21(6).
In order to understand the actual effect of subsection 21(1),
relating to mandatory supervision, we must examine the provi
sions of the Parole Act as a whole and read each in relation to
the others. This statute establishes two broad categories of
release. This may be inferred both from section 18 of the Act,
under which the Board grants "parole to an inmate, or an
13 A.B., at pp. 103-105.
inmate is released from imprisonment subject to mandatory
supervision", and from the general scheme of the Act. The first
category, parole, is defined in section 2 of the Act as "author-
ity granted under this Act to an inmate to be at large during the
inmate's term of imprisonment and includes day parole".
Within this category, as the definition indicates, there is what
is called "day parole": "parole the terms and conditions of
which require the inmate to whom it is granted to return to
prison from time to time during the duration of the parole or to
return to prison after a specified period".
Under the terms of section 15 of the Act, the Board shall
review the case of an inmate unless he advises the Board in
writing that he does not wish to be granted parole, and in all
cases it must decide whether to grant or refuse day parole.
Under section 17, the Board is not required, in considering
whether parole should be granted or revoked, to personally
interview the inmate or any person on behalf of the inmate,
subject to such regulations as the Governor in Council may
make in that behalf. However, section 19.2 of the Regulations
has been adopted, providing that not later than 15 days before
the Board reviews the case of an inmate for the first time to
decide whether parole should be granted or denied, the Board
shall notify the inmate, in writing, of the terms and conditions
of parole. As I noted earlier, the Commission québécoise des
libérations conditionnelles did not examine the applicant's
case, let alone notify him of the terms and conditions of parole.
The other broad category is "mandatory supervision". It is
not defined in section 2 of the Act, but, as is set out in subsec
tion 21(1) of the Act, it applies to an inmate who is released
prior to the expiration of his sentence, solely as a result of
remission, including earned remission, and the term of the
remission exceeds sixty days. For this system to apply, the
inmate must have been refused parole by the Board, or have
waived it in writing, which the applicant did not do. I believe
that section 15 of the Act imposes an obligation on the
National Parole Board to review the case of every inmate at the
time established by subsection 15(1), and that this obligation is
binding on a provincial board in respect of federal inmates
serving their sentence in a provincial prison. Subsection 12(1)
provides that "The lieutenant governor in council of a province
may appoint a Board of Parole for that province to exercise
parole jurisdiction, in accordance with this Act and the regula
tions, in respect of inmates detained in a provincial institu
tion ... ". Because there is an obligation under subsection
15(1) of the Act to examine the case of every inmate, it is
mandatory that the National Parole Board or the provincial
boards, as the case may be, decide whether to grant or refuse
parole to an inmate.
The Trial Judge then stated: 14
I believe that under this Act there is a fundamental right in
Canada for any inmate who is serving a sentence of two years
or more to have his case reviewed by a parole board (national
or provincial) and to have it decide whether the inmate will be
14 A.B., at pp. 105-106.
released on parole. This right exists independently of the
parole system provided in section 26 of the Penitentiary Act
(R.S.C. 1970, c. P-6, now R.S.C., 1985, c. P-5, section 28) or
similar systems established by the provincial governments.
When the National Parole Board or a provincial board, as the
case may be, has decided the case of an inmate who is eligible
for parole after serving one third of his sentence, two situations
may arise: either the board agrees to release the inmate on
parole, on the terms and conditions set out in section 16 of the
Act cited above, or it refuses to do so. If it agrees, the inmate
will be released on parole on the terms and conditions which it
deems desirable. On the other hand, if it refuses, the inmate
will remain in penitentiary, although this does not mean that he
cannot be granted temporary absences. If the inmate is not
released under the parole system, he may nonetheless be
granted release under another system, "mandatory supervision"
which, as set out in section 21.1 of the Act cited above, entitles
him "to be released from imprisonment prior to the expiration
of the sentence according to law unless the Board directs pur
suant to paragraph 21.4(4)(a) that the inmate shall not be so
released". I conclude from this that mandatory supervision
applies only to an inmate who has been refused parole or who
has waived parole in writing. Accordingly, the National Parole
Board had no jurisdiction to impose mandatory supervision on
an inmate who had been sentenced to imprisonment in or
transferred to a penitentiary on and after August 1, 1970, to use
the words of subsection 21(6) of the Act, unless the inmate had
been refused parole or had waived parole in writing.
He then concluded: 15
Despite the temporary absences granted to the applicant, he
has been deprived of his right to have his case reviewed by a
board for the purpose of obtaining parole, and accordingly the
National Parole Board had no jurisdiction to impose mandatory
supervision on him under section 21 of the Act.
Was the Trial Judge correct to treat the first two
decisions of the Parole Board, dated November 7 and
28, 1988, as being different, and, second, to hold that
since the Commission québécoise des libérations
conditionnelles had failed to deal with the respon
dent's parole the National Parole Board had lost the
right to impose mandatory supervision on the respon
dent under subsection 21(1) of the Parole Act?
The appellant submits that he was not.
15 A.B., at pp. 106-107.
The appellant contends, first, that it made only one
decision, dated November 7, 1988, and not two, as
the Trial Judge stated. The appellant made its deci
sion with respect to the terms and conditions of
mandatory supervision on November 7, 1988. It did
not impose any special term or condition on the
respondent. Release on mandatory supervision was
subject only to the mandatory terms and conditions
set out in section 19.1 of the Regulations. Because
the appellant refused to modify the condition set out
in paragraph 19.1(c) of the Regulations, which pro
vides that the inmate must remain in Canada, the
effect was to prevent the respondent from leaving the
country and working abroad. The certificate issued
on November 28, 1988 was merely an attestation of
the decision of November 7, 1988, and so, according
to the appellant, cannot be considered to be a deci
sion within the meaning of paragraph 2(g) of the
Federal Court Act [R.S.C., 1985, c. F-7]. Inciden
tally, subsection 18(1) [as am. by R.S.C., 1985 (2nd
Supp.), c. 35, s. 6] of the Parole Act provides for the
issuance of this certificate. The appellant further sub
mits that the Trial Judge confused the date of that
decision and the day when it was to take effect, that
is, December 5, 1988. On that date, the respondent
returned to the federal penitentiary system. The
appellant submits that the Trial Judge erred in finding
that the appellant had no jurisdiction to decide the
terms and conditions of mandatory supervision since
on that date the respondent returned to the federal
penitentiary system.
With respect to the decisions dated February 13,
1989, June 8, 1989, July 6, 1990 and August 3, 1990,
the appellant submits that the respondent cannot rely
on the failure of the provincial board to act and that
board's silence to argue that the National Parole
Board had no jurisdiction to impose or modify the
terms and conditions of mandatory supervision
which, by operation of the Act and Regulations,
apply to the respondent. Starting the moment when
an inmate is released as a result of remission, the Act
requires that the inmate be supervised and that he not
breach any of the conditions on which he is released.
The absence of any decision dealing with an inmate's
parole has no impact on the legal obligation imposed
by section 21 of the Act, by virtue of which any
inmate released before the expiration of his sentence
is subject to mandatory supervision. The situations of
an inmate on parole and an inmate on mandatory
supervision are the same, except for the date of
release. For each of them, the term of imprisonment
is deemed to continue in force until the expiration
thereof according to law; 16 terms and conditions may
be imposed; 17 parole or mandatory supervision may
be terminated or revoked for breach of any term or
condition. 18
The respondent did not appear and made no sub
missions, since, we are told, he is outside the country
and in custody.
With respect to the first point raised by the appel
lant, there is no doubt, on the face of the document
itself, 19 that the decision dated November 7, 1988
took effect only on December 5, 1988, the date when
the inmate returned to the federal penitentiary sys
tem. If the appellant had jurisdiction on that date it in
no way infringed on the jurisdiction of the provincial
parole board. The Trial Judge therefore erred in hold
ing "that on those dates it was for the Commission
québécoise, and not the National Parole Board, to
decide such a request". Moreover, the certificate
issued on November 28, 1988, in accordance with
subsection 18(1) of the Act, is not a separate decision
and cannot be the subject of certiorari.
With respect to the second issue raised by the
appellant, an historical review of the provisions deal
ing with parole and mandatory supervision indicates
that application of section 21 of the Act, which deals
with mandatory supervision, is not conditional on
release on parole.
16 See s. 19(1) of the Parole Act with respect to parole and s.
21(2) [as am. by R.S.C., 1985 (2nd Supp.), c. 35, s. 10] with
respect to mandatory supervision.
17 See s. 16(1)(a) of the Act with respect to parole and s.
16(1)(b) with respect to mandatory supervision.
18 See s. 22 to 25 [as am. by R.S.C., 1985 (1st Supp.), c. 27,
s. 203; (2nd Supp.), c. 34, ss. 6, 7, 13; c. 35, ss. 11, 12] of the
Act with respect to parole and s. 21(2) with respect to manda
tory supervision.
19 A.B., at p. 47.
In Re Moore and the Queen, 20 Mr. Justice Dubin,
speaking for the Ontario Court of Appeal, defined
mandatory supervision as follows:
Release on mandatory supervision is a procedure whereby
an inmate of a prison who has not been granted parole is
released before the expiration of the sentence imposed at a date
set by statute so that the inmate may serve the balance of his
sentence at large in society but under supervision and subject
to return to prison if the former inmate fails to comply with the
conditions governing the release. The statutory provision
which governs the date of such release is to be found in s. 24
of the Penitentiary Act, R.S.C. 1970, c. P-6, subsequently
referred to. It is a date over which the National Parole Board
has no control. [Emphasis added.] 21
Section 24 of the Penitentiary Act, 22 to which Mr.
Justice Dubin refers, became section 25 of the present
Act [R.S.C. 1985, c. P-5 (as am. by R.S.C., 1985
(2nd Supp.), c. 34, s. 10)]; this section, which deter
mines the date of release on mandatory supervision,
reads as follows:
25. (1) Subject to this section and section 26.1, every inmate
shall be credited with fifteen days of remission of the sentence
of the inmate in respect of each month and with a number of
days calculated on a pro rata basis in respect of each incom
plete month during which the inmate has been industrious, as
determined in accordance with any Commissioner's directives
made in that behalf, with regard to the program of the peniten
tiary in which the inmate is imprisoned.
20 (1983), 41 O.R. (2d) 271, at pp. 272-273, affirmed with
slight variation by the Supreme Court of Canada; the decision
of that Court is reported at p. 281 of the same report series. See
also [1983] 1 S.C.R. 658 [sub nom. Oag v. The Queen et al.].
21 It should be noted, however, that s. 15(1) of the Parole
Act, R.S.C. 1970, c. P-2 (now s. 21(1) of the Parole Act), on
which the definition proposed by Mr. Justice Dubin was based,
then read as follows:
15. (1) Where an inmate to whom parole was not granted
is released from imprisonment, prior to the expiration of his
sentence according to law, as a result of remission, inclu
ding 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.
[Emphasis added.]
The words "to whom parole was not granted" have been
deleted by S.C. 1976-77, c. 53, s. 28(1) and do not appear in
the present s. 21(1) of the Act. There will be a comment
later on in this judgment.
22 R.S.C. 1970, c. P-6.
(2) The first credit of earned remission pursuant to subsec
tion (1) shall be made not later than the end of the month next
following the month the inmate is received into a penitentiary,
and thereafter a credit of earned remission shall be made at
intervals of not more than three months.
(3) Where an inmate was received into a penitentiary before
July 1, 1978, the date of the first credit of earned remission
referred to in subsection (2) is August 31, 1978, and the subse
quent intervals run from that date.
(4) For the purposes of this section and section 26.1, a refer
ence to the expiration of a sentence of an inmate according to
law shall be read as a reference to the day on which the
sentence expires, without taking into consideration any remis
sion standing to the credit of the inmate.
(5) An inmate is not entitled to be released from imprison
ment, solely as a result of remission,
(a) prior to the expiration according to law of the sentence
the inmate is serving at the time an order is made in respect
of the inmate pursuant to paragraph 21.4(4)(a) of the Parole
Act, as determined in accordance with section 20 of that Act
at the time the order is made; or
(b) where the case of the inmate is referred to the Chairman
of the National Parole Board pursuant to subsection 21.3(3)
of the Parole Act during the six months immediately preced
ing the presumptive release date of the inmate, prior to the
rendering of the decision of the Board in connection there
with.
(6) Where an order is made in respect of an inmate pursuant
to paragraph 21.4(4)(a) of the Parole Act, the inmate shall for
feit all statutory and earned remission standing to the credit of
the inmate, whether accrued before or after the coming into
force of this section.
(7) Any remission of sentence forfeited pursuant to subsec
tion (6) shall not thereafter be recredited pursuant to subsection
25(3) of the Parole Act.
This formula, when read with the other provisions
of the Act, as Mr. Justice Dubin stated, 23 actually
produces a maximum earned remission of one third
of the sentence imposed by the Court, which amounts
to saying that in theory an inmate must serve two
thirds of his sentence before being released on
mandatory supervision. Earned remission may, how
ever, be forfeited under section 26 of the Act.
Also in Moore, 24 Mr. Justice Dubin explained that
the origin of the provisions dealing with mandatory
supervision, which are set out, inter alia, in section
21 of the Parole Act, is found in section 101 of the
23 Moore, supra, at p. 276.
24 Ibid., at pp. 277-278.
Criminal Law Amendment Act, 1968-69. 25 During the
period which preceded the enactment of that Act,
unlike the case of a person under parole, anyone
released by reason of the provisions of the Peniten
tiary Act relating to earned remission was not subject
to the supervision of the National Parole Board for
the balance of his sentence. The Ouimet Report made
the following comments: 26
Canada's experience, like that in most other countries, has
been that during the early development of parole releases were
made cautiously and were granted to the better risks among
prison inmates. This is a necessary stage in development, par
ticularly in view of the fact that the occasional dramatic inci
dent whereby a parolee commits some violent crime tends to
create strong public reaction against parole as a whole. Increas
ingly, however, it is being pointed out that the practice of
parolling only the better risks means that those inmates who
are potentially the most dangerous to society are still, as a rule,
being released directly into full freedom in the community
without the intermediate step represented by parole.
At present, about 25 per cent of inmates coming out of the
federal penitentiaries do go on parole. The other 75 per cent
come out without any formal supervision, although many of
them do apply voluntarily for assistance to the private after
care agencies. Since there are about 3,500 releases from the
penitentiaries each year, the number who are being released
without supervision is considerable. Among them are many of
the most dangerous who could not meet the requirements for
parole.
The aim should be to develop a system under which almost
everyone would be released under some form of supervision. It
is best if he is released at the point at which the chances for his
successful reintroduction to community life would be highest.
This means the extension of parole as we now know it to every
case possible.
However, there will be many who will not qualify for parole
and they should also be subject to supervision. This can be
accomplished by making the period of statutory remission a
period of supervision in the community, subject to the same
25 S.C. 1968-69, c. 38.
26 Canada, Report of the Canadian Committee on Correc-
tions—Toward Unity: Criminal Justice and Corrections.
Ottawa, Queen's Printer, March 1969 (Chairman: Roger Oui -
met), at pp. 348, 350-351.
procedures that apply to parole. This means the releasee would
be subject to conditions and to return to complete his sentence
in the institution if he violates those provisions. He should also
receive the same kind of assistance and control through super
vision that applies to parolees.
For practical reasons, there would be little purpose in super
vising an inmate whose statutory remission period is only a
few days in length. Perhaps a period of sixty days should be
seen as the minimum when supervision could be effective.
Since the success rate among these inmates is apt to be less
than among those who qualify for parole, some name for this
program other than parole should be used so that there will be
no confusion between the success rates of parole and the suc
cess rates of this new program.
The Committee recommends that a system called Statu
tory Conditional Release be introduced through appropri
ate legislation to make any period of statutory release
longer than sixty days subject to the same rules and condi
tions that govern parole.
Such legislation should increase the number of inmates
applying for parole instead of waiting for conditional release
since either form of release will imply supervision. It will pre
vent the unconditional release of so many inmates who need
supervision but do not receive it because it cannot be imposed
under present circumstances.
Because the Parole Board could not prevent an
inmate from being released under mandatory supervi
sion, since it had no control over the date when such
release took effect, and the technique of arresting an
inmate immediately upon release under mandatory
supervision (gating) had been held to be ultra vires, 27
the federal Parliament adopted measures to give the
Board jurisdiction to prohibit the release of the
inmate. These are found in sections 21.1 to 21.6 [as
enacted by R.S.C., 1985 (2nd Supp.), c. 34, s. 5] of
the Parole Act, from which the Trial Judge quoted
section 21.1, inter alia:
27 Moore, supra; Truscott v. Director of Mountain Institution
et al. (1983), 147 D.L.R. (3d) 741 (B.C.C.A.), both affirmed
by the Supreme Court of Canada; the decision of that Court is
reported at p. 538 of the same report series. See also [1983] 1
S.C.R. 658.
21.1 Remission is credited, in accordance with the Peniten
tiary Act and the Prisons and Reformatories Act, against the
sentence being served by an inmate and entitles the inmate to
be released from imprisonment prior to the expiration of the
sentence according to law unless the Board directs pursuant to
paragraph 21.4(4)(a) that the inmate shall not be so released.
[Emphasis added.]
On the other hand, parole, which started in 1868
with the first Act respecting Penitentiaries [The Peni
tentiary Act of 1868, S.C. 1868, c. 75], 28 except in
the case of the royal prerogative, is a completely sep
arate system. The Act defines it in section 2 as
"authority granted under this Act to an inmate to be
at large during the inmate's term of imprisonment
and includes day parole". According to paragraph
16(1)(a) of the Act, it may be granted to an inmate,
subject to any terms or conditions the Parole Board
considers reasonable, if it considers that:
16. (1)...
(i) in the case of a grant of parole other than day parole,
the inmate has derived the maximum benefit from impris
onment,
(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;
It is not necessary for me to consider here whether
the Trial Judge was correct in stating " . .. that under
this Act there is a fundamental right in Canada for
any inmate who is serving a sentence of two years or
more to have his case reviewed by a parole board
(national or provincial) and to have it decide whether
the inmate will be released on parole". It is obvious,
however, that the Trial Judge was influenced by the
wording of section 15 [as am. by R.S.C., 1985 (2nd
Supp.), c. 34, s. 3] of the Act itself, inter alia the
words "the Board shall review". 29 The Trial Judge
could not, however, link these two systems and make
28 See D. P. Cole, A. Manson, Release from Imprison-
ment—The Law of Sentencing, Parole and Judicial Review
(Toronto: Carswell, 1990), at pp. 159ff.
29 S. 15(1) of the Parole Act reads in part:
15. (1) Subject to subsection (2), the Board shall review
... and shall do so at the times prescribed by the regulations
but not later than the day on which an inmate has served the
(Continued on next page)
the application of mandatory supervision conditional
on parole, since the words "solely as a result of
remission,[ 30 ] including earned remission, and the
term of the remission exceeds sixty days" [under-
lining added] in subsection 21(1) of the Act refer to
earned remission and have nothing to do with parole.
Here we should recall what the Trial Judge said
with respect to the word "solely": 31
The other broad category is "mandatory supervision". It is
not defined in section 2 of the Act, but, as is set out in subsec
tion 21(1) of the Act, it applies to an inmate who is released
prior to the expiration of his sentence, solely as a result of
remission, including earned remission, and the term of the
remission exceeds sixty days. For this system to apply, the
inmate must have been refused parole by the Board, or have
waived it in writing, which the applicant did not do.
Parliament's intention with respect to the meaning
to be assigned to the word "solely" is not the mean
ing given by the Trial Judge. As I indicated earlier in
examining Moore, 32 subsection 15(1) of the Parole
Act, as it was in effect on August 1, 1970, started
with the words:
15. (1) Where an inmate to whom parole was not granted is
released from imprisonment, prior to the expiration of his
sentence ... [Emphasis added.]
In 1977 Parliament repealed the words I have
underlined, and enacted the following version: 33
(Continued from previous page)
portion of the term of imprisonment, as prescribed by the
regulations, that must be served before day parole may be
granted. [Emphasis added.]
S. 5 [as am. by SOR/9l-563, s. 4] of the Regulations pro
vides:
5. Subject to sections 6, 8 and 11.1, the portion of the
term of imprisonment that an inmate must serve before full
parole may be granted is one third of the term of imprison
ment imposed on the inmate or seven years, whichever is the
lesser. [Emphasis added.]
30 Statutory remission was abolished by the Criminal Law
Amendment Act, 1977, S.C. 1976-77, c. 53, s. 40.
31 A.B., at pp. 104-105.
32 See footnote 21.
33 Criminal Law Amendment Act, 1977, S.C. 1976-77, c. 53,
s. 28(1). This section came into force on October 15, 1977,
S 1 / 7 7-217, 9 November 1977.
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 ... and the term of such remission
exceeds sixty days, he shall, notwithstanding any other
Act...
During consideration of Bill C-51 by the Commit
tee on Justice and Legal Affairs, the repeal of the
words "to whom parole was not granted", which were
replaced by the word "solely", prompted the follow
ing exchange: 34
Mr. Halliday: Mr. Chairman, what does the word "solely"
mean there?
Mr. Fox: Mr. Chairman, this clause has been reworded to
clarify the definition of "mandatory supervision". Previously,
some inmates for whom parole had been granted and later had
parole revoked or forfeited claimed they were not suject [sic]
to mandatory supervision because of the words:
. to whom parole was not granted...
The intention was therefore clearly to make the
inmate subject to mandatory supervision, even where
parole has been granted and revoked.
The same is undoubtedly true where parole has
never been granted.
For all these reasons, I would allow the appeal, I
would quash the judgment of the Trial Division dated
March 25, 1991, and I would declare the decisions of
the appellant dated November 7, 1988, February 13,
1989, June 8, 1989, July 6, 1990 and August 3, 1990
to be valid and proper, with costs both on appeal and
at trial.
MARCEAU J.A.: I agree.
DECARY J.A: I agree.
34 Canada. Proceedings and evidence before the Standing
Committee on Justice and Legal Affairs (concerning Bill C-51,
Criminal Law Amendment Act, 1977), issue 22, June 16, 1977,
at p. 22:100.
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.