T-2542-80
Serge Beaumier (Applicant)
V.
National Parole Board (Respondent)
and
Canadian Penitentiary Service and the Queen
(Mis -en-cause)
Trial Division, Dubé J.—Montreal, June 25;
Ottawa, July 16, 1980.
Prerogative writs — Mandamus — Parole — Initial deci
sion by National Parole Board to grant applicant day parole
— Subsequent decision by the Board not to grant said parole
as a result of information re applicant's involvement in drug
trafficking — Whether the Board has the power to review its
own decisions — If so, whether applicant should be given
opportunity to present his arguments — Whether the Board's
subsequent decision is equivalent to a revocation — Parole
Act, R.S.C. 1970, c. P-2, as amended by S.C. 1976-77, c. 53,
ss. 6, 8(1)(a), 9(1)(1), 11, 16 — Parole Regulations, SOR/78-
428, ss. 14, 22 as amended by SOR/78-524 — Interpretation
Act, R.S.C. 1970, c. 1-23, s. 26(3).
This is an application whereby applicant seeks to obtain a
writ of mandamus ordering the National Parole Board to take
the action necessary to give effect to the day parole it initially
granted to applicant on May 1, 1979 but subsequently on
September 17, 1979 refused to grant him as a result of infor
mation whereby applicant was identified as one of the "prime
movers" in some clandestine traffic of drugs. Applicant submits
that this second decision is unlawful because (1) the Board did
not have the power to review its own decisions, (2) if it did, it
should have given the applicant an opportunity to present his
arguments and (3) it is equivalent to a revocation and the
Board must reconsider it before revoking it pursuant to the
applicable Regulations.
Held, the application is dismissed. Section 6 of the Parole
Act clearly states that the National Parole Board has exclusive
jurisdiction and absolute discretion to act at any time, either to
make the decisions which it must make, or to make those which
become necessary due to a change in the circumstances. The
Parole Act provides for a hearing and proceeding in certain
cases, but excludes it in others. Here, the legislator has limited
and made more specific the "duty to act fairly". The legislation
has imposed on the Board a duty to hear an inmate's applica
tion initially after the date on which the latter becomes eligible
for complete or day parole and it may thenceforth allow or
refuse parole at any time. In the case at bar, the Board is not
required to re-hear the inmate and to go through the revocation
procedure, since this procedure only applies to cases in which
the inmate has been returned to detention as a result of the
arrest provided for in section 16 of the Act. The fact that parole
is refused before it begins cannot be interpreted as a revocation
within the meaning of the Act. In cases of the denial of day
parole, the Board is not required to re-examine an initial
decision under sections 9(1)(1) and 11 of the Act.
Howarth v. National Parole Board [1976] 1 S.C.R. 453
referred to. Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police [1979] 1 S.C.R. 311,
referred to.
APPLICATION.
COUNSEL:
C. Lanctôt for applicant.
D. Marecki for mis -en-cause the Queen.
SOLICITORS:
C. Lanctôt, La Prairie, for applicant.
Deputy Attorney General of Canada for mis -
en-cause the Queen.
The following' is the English version of the
reasons for order rendered by
Dust J.: Applicant is asking the Court to issue
a writ of mandamus ordering the National Parole
Board ("N.P.B.") to take all the action necessary
to give effect to the day parole duly granted to
applicant on May 1, 1979.
On that date, the N.P.B. decided to grant appli
cant the said day parole to take effect the follow
ing September 14. Subsequently, on September 17,
1979, with applicant still imprisoned, the N.P.B.
changed its mind and decided not to grant the said
parole.
Applicant submitted that this second decision is
unlawful, first because the N.P.B. does not have
the power to review its own decisions; second, if it
has such a power, it should have given applicant an
opportunity to present his arguments; and third, if
the N.P.B. can review its own decisions without
hearing applicant, the fact that it denied a parole
already granted is equivalent to revocation, and
the Regulations applicable to the N.P.B. provide
that it must reconsider its second decision before
revoking it.
It is admitted that notwithstanding the fact that
the N.P.B. had not issued the parole certificate
provided for in section 12 of the Act [Parole Act,
R.S.C. 1970, c. P-2, as amended by S.C. 1976-77,
c. 53], the day parole was nonetheless granted on
May 1, 1979.
As appears in a letter from the N.P.B. to appli
cant, the second decision was taken [TRANSLA-
TION] "as a result of his misconduct on trips to the
forest project at La Macaza". Applicant was not
part of the said project and denied that he had
been involved in drug trafficking connected with
this project.
According to the affidavit submitted by the
chief of residential units of the Canadian Peniten
tiary Service, assigned to the La Macaza Institu
tion, searches of the bus used on this special
project, made as a result of information provided
by an informer, disclosed on August 7, 1979 the
presence of marijuana and valium hidden in the
front of the bus. An informer identified applicant
as [TRANSLATION] "one of the prime movers in
this clandestine traffic".
In light of the powers conferred on the N.P.B.
by section 6 of the Act, the latter considered that
in carrying out its objectives, namely the social
reintegration of inmates and protection of the
public, it has a clear power to review its own
decisions when changes are made. Section 6 reads
as follows:
6. Subject to this Act, the Penitentiary Act and the Prisons
and Reformatories Act, the Board has exclusive jurisdiction
and absolute discretion to grantor refuse to grant parole or a
temporary absence without escort pursuant to the Penitentiary
Act and to revoke parole or terminate day parole.
Learned counsel for the applicant maintained
that the question raised in this Court turns solely
on the interpretation that should be given to the
words "the Board has exclusive jurisdiction and
absolute discretion to grant or refuse to grant
parole" [emphasis added]. He argued that follow
ing an application for parole the N.P.B. can grant
or refuse to grant the parole, but that it cannot
successively exercise these two powers as it claims
to do in the case at bar: the N.P.B. had the power
to grant the parole on May 1, 1979, but lost any
power to refuse it subsequently on September 17,
1979.
Counsel further argued that the N.P.B. has
jurisdiction and absolute discretion to revoke
parole and terminate day parole; but this latter
power to terminate applies only when the purpose
for which the day parole was granted has ended
and the said parole becomes impossible. On the
other hand, revocation applies in all cases where
the behaviour of the parolee is in question and
justifies his imprisonment or the continuation of
his imprisonment.
I cannot accept this argument. Section 6 of the
Act clearly states that the N.P.B. has exclusive
jurisdiction and absolute discretion to act at any
time, either to make the decisions which it must
make, or to make those which become necessary
due to a change in the circumstances. The Inter
pretation Act, R.S.C. 1970, c. I-23, provides in
subsection 26(3) that where a "power is conferred
or a duty imposed the power may be exercised and
the duty shall be performed from time to time as
occasion requires". Maxwell on the Interpretation
of Statutes, 1962 ed., has this to say at page 350:
Where an Act confers a jurisdiction, it impliedly also grants
the power of doing all such acts, or employing such means, as
are essentially necessary to its execution. Cui jurisdictio data
est, ea quoque concessa esse videntur, sine quibus jurisdictio
explicari non potuit.
Once an inmate becomes eligible for parole, the
N.P.B. may grant it to him at any time and may at
any time refuse it, provided that its decision is not
purely arbitrary. The fact that parole is refused
before it begins cannot be interpreted as a revoca
tion within the meaning of the Act.
Since Howarth v. National Parole Board [ 1976]
1 S.C.R. 453, there is no doubt that the decisions
of the N.P.B. are decisions of an administrative
nature, not subject to a judicial or quasi-judicial
process. However, the "duty to act fairly" is a
fundamental principle providing a minimum of
protection to individuals with respect to adminis
trative decisions arrived at in an arbitrary manner
(see Nicholson v. Haldimand-Norfolk Regional
Board of Commissioners of Police [1979] 1
S.C.R. 311).
The Parole Act provides for a hearing and pro
ceeding in certain cases, but excludes it in others.
In this case, therefore, the legislator has limited
and made more specific the principle referred to
above. The legislator has imposed on the N.P.B. a
duty to hear the inmate in the event that he
submits an initial request, as provided for in para
graph 8(1)(a) of the Act and section 14 of the
Regulations [Parole Regulations, SOR/78-428].
Section 11, as well as sections 16 et seq. of the
Act, specifically provides that the N.P.B. need not
hold a second hearing on the case.
It will be recalled that the fundamental allega
tion of applicant is that the refusal of his parole,
which had already been granted, is equivalent to a
revocation, and that the N.P.B. should therefore
have allowed him the proceeding provided for in
section 22 of the Regulations, namely a review of
the decision. However, it should be borne in mind
that applicant had not been released or arrested.
Accordingly, his case is not one of those dealt with
by section 16 of the Act. The two sections read as
follows:
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.
22. (1) Where a decision is made by the Board in respect of
a federal inmate that
(a) denies full parole to that inmate,
(b) revokes the parole granted to that inmate, or
(c) revokes the mandatory supervision of that inmate,
the inmate may request the Board to re-examine the decision.
(2) Where the request referred to in subsection (1) is
received within thirty days of the date the inmate is notified of
the decision by the Board, the Board shall, and in any other
case the Board may, cause the decision to be re-examined.
(3) A re-examination under this section shall
(a) be conducted by Board members who did not participate
in the decision being re-examined; and
(b) be conducted by way of a re-examination of the material
on which the decision being re-examined was rendered by the
Board, together with any other relevant information that was
not available at the time of that decision.
From this I conclude that the N.P.B. is required
to hear an inmate's application initially after the
date on which the latter becomes eligible for com
plete or day parole, and that it may thenceforth
allow or refuse parole at any time. In the case at
bar, it is not required to re-hear the inmate, and to
go through the revocation procedure, which only
applies to cases in which the inmate has been
returned to detention as a result of the arrest
provided for in section 16 of the Act. In cases of
the denial of day parole, the N.P.B. is not required
to re-examine an initial decision under sections
9(1)(l) and 11 of the Act. The two sections read as
follows:
9. (1) The Governor in Council may make regulations
(1) prescribing the circumstances in which the Board must
re-examine a decision to deny parole, other than day parole,
or to revoke parole or mandatory supervision;
11. Subject to such regulations as the Governor in Council
may make in that behalf, the Board is not required, in consider
ing whether parole should be granted or revoked, to personally
interview the inmate or any person on his behalf.
The N.P.B. also is not required to re-examine its
initial decision under section 22 of the Regula
tions, since the latter does not relate to day parole.
There is therefore no basis for issuing a man-
damus to order the N.P.B. to give effect to the day
parole granted on May 1, 1979, and the applica
tion is dismissed. It was agreed that this applica
tion, as well as those of Denis Tremblay and
Michel Piché, would be heard concurrently, and
that the same decision in principle would apply
mutatis mutandis to the three cases.
ORDER
The application is dismissed, but in the circum
stances without 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.