T-957-79
James Robert Stevens (Applicant)
v.
National Parole Board (Respondent)
Trial Division, Mahoney J.—Toronto, February
26; Ottawa, February 28, 1979.
Parole — Applicant, on suspension of his release under
mandatory supervision, recommitted to custody — Respondent
Board refused to deal with case at time case was referred to it,
insisting on lapse of 15 days as provided for by Parole
Regulations — Both options available to respondent Board on
making its decision resulting in applicant's release — Whether
or not subs. 20(1) of the Parole Regulations to be interpreted
as requiring respondent to wait 15 days from the date of
referral before dealing with the matter — Whether or not subs.
20(1) of the Parole Regulations is ultra vires — Parole Act,
R.S.C. 1970, c. P-2, ss. 9(1)(k),(o), 16 — Parole Regulations,
SOR/78-428, s. 20(1),(2).
APPLICATION.
COUNSEL:
J. Fyshe for applicant.
T. L. James for respondent.
SOLICITORS:
Martin, Kainer & Fyshe, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
MAHONEY J.: These reasons ensue upon the
grant from the bench at the hearing of the order
sought by the applicant, the style of cause having,
by consent, been amended and counsel for the
originally named respondents, the Solicitor Gener
al of Canada and the National Parole Service,
accepting service on behalf of the present respond
ent and consenting to the immediate return of the
originating notice of motion. The issue is novel and
the Deputy Attorney General of Canada wished it
to be determined. Any delay would have resulted
in it becoming academic.
The following provisions of the Parole Act' are
in immediate issue.
9. (1) The Governor in Council may make regulations
(k) prescribing the time within which the Board must con
duct a hearing and render a decision after referral to it of a
case pursuant to subsection 16(3);
(o) providing for such other matters as are necessary to
carry out the provisions of this Act or to facilitate the
carrying out of the functions of the Board.
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 been
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.
(2) The Board or a person designated by the Chairman may,
by a warrant in writing, transfer an inmate following his
recommitment to custody pursuant to paragraph (1)(c) to a
place where he is to be held in custody until the suspension of
his parole is cancelled or his parole is revoked.
(3) The person by whom a warrant is signed pursuant to
subsection (1) or any other person designated by the Chairman
for the purpose shall forthwith after the recommitment of the
paroled inmate named therein review the case and, within
fourteen days after the recommitment or such shorter period as
may be directed by the Board, either cancel the suspension or
refer the case to the Board.
(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.
(5) An inmate who is in custody by virtue of this section
shall be deemed to be serving his sentence.
The question is whether subsection 20(1) of the
Parole Regulations 2 is to be interpreted as requir
ing the respondent to wait 15 days from the date of
the referral under subsection 16(3) of the Act
before deciding to revoke a parole and, if so,
whether it is intra vires.
' R.S.C. 1970, c. P-2.
2 SOR/78-428.
20. (1) Where, in the case of a federal inmate,
(a) parole granted to the inmate has been suspended,
(b) the inmate is in custody, and
(c) the inmate's case has been referred to the Board pursu
ant to subsection 16(3) of the Act,
the Board shall not revoke the inmate's parole until a period of
fifteen days has elapsed following receipt by the Board of the
referral.
(2) Where the case of an inmate has been referred to the
Board pursuant to subsection 16(3) of the Act and that inmate
has applied for a hearing in respect of the referral during the
period referred to in subsection (1), the Board shall
(a) commence a hearing as soon as practical following
receipt by the Board of the application; and
(b) inform the inmate of the date of the hearing at least
fourteen days before the date the hearing is to commence.
The applicant was released from close custody
on mandatory supervision in March 1978, and, on
January 31, 1979 was convicted of theft under
$200. The same day his release under mandatory
supervision was suspended and he was recommit-
ted to custody under section 16 of the Parole Act.
The case was referred to the respondent pursuant
to subsection 16(3) on February 12. The respond
ent has refused to deal with the matter under
subsection 16(4) until expiration of the fifteen
days provided by subsection 20(1) of the Regula
tions. The applicant has waived the hearing to
which he is entitled under subsection 20(2) of the
Regulations.
The applicant is, in the jargon of the trade, a
"turnaround". If the respondent cancels the sus
pension of his mandatory supervision he will, of
course, resume his freedom from close custody. If,
on the other hand, it revokes his parole, a recalcu-
lation of his sentence under section 20 of the Act
will result in a determination that his sentence has
been fully served because of the earned remission
that stood to his credit in March 1978. Whichever
of the decisions it is entitled to make is arrived at
by the respondent, the applicant will be released
from custody. Meanwhile he remains in custody
pending effluxion of the 15 days provided by sub
section 20(1) of th,e Regulations which, in the
respondent's view, must run before it can reach
one of the decisions open to it.
The Regulation is cast in mandatory terms. The
respondent's interpretation of it is the only reason
able interpretation open to it.
The Regulation does not fall within the power
delegated by paragraph 9(1)(k). A regulation
stipulating that a decision shall not be made within
a certain time is not a regulation prescribing the
time within which a decision must be made. It is
the opposite of what is authorized.
I do not think that the general power to make
regulations delegated by paragraph 9(1)(o) can be
construed as authorizing the making of Regulation
20(1). It does not deal with an "other matter" but
rather with a matter authorized to be dealt with by
paragraph 9(1)(k). The power to make regulations
"necessary ... to facilitate the carrying out or the
respondent's functions, being general, cannot be
construed as authorizing the making of a regula
tion with the opposite effect to one which is
specifically authorized.
Finally, the Regulation is inconsistent with the
Act. Subsection 16(4) of the Act requires that,
upon referral, the respondent review the case and
cause the inquiries it deems necessary to be made
and "forthwith" thereafter, to decide. It may well
be that, in many, or even most, cases, fifteen days
would necessarily be expended in completion of the
required review and investigation. In some, per
haps more time would be needed. However, where
less time is required to complete the review and
investigation, a regulation requiring that the deci
sion be delayed cannot be given effect over the
clear requirement of the Act that it be made
forthwith.
In my view, subsection 20(1) of the Parole
Regulations is ultra vires the power delegated to
the Governor in Council to make regulations and
is further ultra vires as it is contrary to the express
requirement of the Act. The applicant was entitled
to a writ of mandamus directing the respondent,
forthwith upon completion of the review of his case
and the completion of its inquiries in connection
with it, to either cancel the suspension of his
release on mandatory supervision or to revoke his
parole.
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.