T-2274-76
Ray Ford (Plaintiff)
v.
National Parole Board (Defendant)
Trial Division, Walsh J.—Montreal, November
24, 1976; Ottawa, December 17, 1976.
Judicial review—Parole Act and Regulations—Whether
parole a privilege or a right—Whether decision by Parole
Board administrative act not normally to be reviewed by
court—Whether right to review can be postponed by subse
quent regulation—Parole Act, R.S.C. 1970, c. P-2, s. 21(1)—
Parole Regulations, s. 2(1)(a)—Interpretation Act, R.S.C.
1970, c. I-23, s. 35.
Plaintiff was condemned to ten years' imprisonment in 1965
and was granted parole in 1969. He was convicted and sen
tenced to a further ten years' imprisonment while still on parole
in 1971. At that time he would have had to serve at least four
years' imprisonment before being eligible for parole in 1975. In
1973 the Parole Regulations were amended so that the earliest
date at which the plaintiff could apply for parole would be
1978. His record was nevertheless examined by the defendant
in 1975 and he was advised that it would again be studied in
1977. Plaintiff suggests that the 1975 examination was done
pursuant to section 2(2) of the Parole Regulations which would
require a finding of "special circumstances" for granting parole
instead of the normal criteria and that he therefore suffers a
prejudice if the normal criteria cannot now be applied until
1977.
Defendant argues that granting of parole is a privilege and
not a right and that decisions by the Parole Board are adminis
trative acts which should not be interfered with unless the rules
of natural justice have been infringed.
Held, the Court has no information as to whether the review
made on August 5, 1975 was by virtue of section 2(1)(a) or
section 2(2) of the Regulations or whether different criteria
would be applied, but if the review was not made by virtue of
section 2(1)(a) in accordance with the criteria normally
applied, this should be done. There is a distinction between
granting parole, which is a privilege to be exercised at the sole
discretion of the National Parole Board after a review of the
inmate's record and the making of such a review at times
required by the Act and Regulations which is a right. A right,
unlike a privilege, cannot be retroactively abrogated unless such
intention is clearly expressed by the legislature.
Upper Canada College v. Smith (1921) 61 S.C.R. 413;
Boyer v. The King [1949] S.C.R. 89 and Colonial Sugar
Refining Co. v. Irving [1905] A.C. 369, applied.
ACTION.
COUNSEL:
J. F. Boulais for plaintiff.
Pierre Loiselle for defendant.
SOLICITORS:
Bertrand, Boulais, Lemaitre -Auger Allard,
Joly-Ryan and Grenier, Montreal, for
plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
WALSH J.: This action deals with the effect of
Order in Council 1973-1432 dated June 5, 1973',
which amended Order in Council 1964-1827 dated
December 3, 1964 2 , on the right of a prisoner who
was convicted on August 5, 1971, to have his
eligibility for parole considered by the National
Parole Board on August 5, 1975, at which date it
would have come up for consideration in accord
ance with the earlier Order in Council rather than
on August 5, 1978, the earliest date at which he
would become eligible by virtue of the provisions
of the amending Order in Council. There is no
dispute between the parties as to the facts. In 1965
plaintiff was condemned to ten years' imprison
ment but was granted parole on June 9, 1969. He
was convicted again on August 5, 1971 while still
on parole and condemned to ten years' imprison
ment. This would of course have been added to the
unexpired portion of the earlier sentence pursuant
to section 21(1) of the Parole Act 3 . At that time
section 2(1)(a) of the Regulations in effect by
virtue of the December 3, 1964 Order in Council
read as follows:
' SOR/73-298.
2 SOR/64-475.
3 R.S.C. 1970, c. P-2.
2. (1) The portion of the term of imprisonment that an
inmate shall ordinarily serve, in the cases mentioned in this
subsection, before parole may be granted, is as follows:
(a) where the sentence of imprisonment is not a sentence of
imprisonment for life or a sentence of preventive detention,
one-third of the term of imprisonment imposed or four years,
whichever is the lesser, but in the case of a sentence of
imprisonment of two years or more to a federal penal institu
tion, at least nine months.
As a result of this the minimum period which
plaintiff had to serve before he could be granted
parole was four years which period would expire
on August 5, 1975 and he was so advised by
defendant.
The June 8, 1973 amendment revoked para
graph 2(1) (a) of the Parole Regulations and sub
stituted the following:
(a) where the term of imprisonment is not a sentence of
imprisonment for life or a sentence of preventive detention,
(i) if the term of imprisonment is not a term imposed by
subsection 21(1) of the Parole Act, one-third of the term
imposed or seven years, whichever is the lesser, or
(ii) If the term of imprisonment is a term imposed by
subsection 21(1) of the Parole Act, one-half of the term
imposed or seven years, whichever is the lesser,
but in the case of a term of imprisonment of two years or
more in a federal penal institution, at least nine months;
By the application of this amendment the earliest
date at which plaintiff could be granted parole
would be August 5, 1978, and he was so advised.
Despite this amendment his record was never
theless examined by defendant on August 5, 1975,
and in due course he was advised that it would
again be studied on August 5, 1977. Plaintiff
suggests that this may have been done by virtue of
section 2(2) of the Parole Regulations contained
in P.C. 1964-1827' and not amended by P.C.
1973-1432 which reads as follows:
2. (2) Notwithstanding subsection (1), where in the opinion
of the Board special circumstances exist, the Board may grant
parole to an inmate before he has served the portion of his
sentence of imprisonment required under subsection (1) to have
been served before a parole may be granted.
4 SOR/64-475.
but that in this case the Board would use different
criteria, having to find that "special circum
stances" exist before granting parole, whereas in a
review by virtue of section 2(1)(a) members of the
Board would be guided by the criteria they would
normally use in deciding whether parole should be
granted, and that plaintiff therefore suffers a
prejudice if this review can only take place after
the expiration of seven years from his sentence on
August 5, 1971, by virtue of the new regulation
rather than after four years by virtue of the former
one. The fact that plaintiff was first advised that
he would be eligible for parole on August 5, 1975,
and subsequently advised that this would not be
the case until August 5, 1978, is in compliance
with paragraph 3(1)(a) of the Regulations in P.C.
1960-681 5 which was not amended by either of the
subsequent Orders in Council referred to above
and which reads as follows:
3. (1) In the case of every inmate serving a sentence of
imprisonment of two years or more, the Board shall
(a) consider the case of the inmate as soon as possible after
the inmate has been admitted to a prison, and in any event
within six months thereof, and fix a date for his parole
review.
Paragraphs (b) and (c) of subsection (1) of section
3 were repealed and replaced by Order in Council
1964-1827 but were not changed by Order in
Council 1973-1432. They read as follows:
(b) review the case of the inmate in order to decide whether
or not to grant or recommend parole and, if parole is to be
granted, the date upon which the parole is to commence, on
or before
(i) the date fixed for the parole review pursuant to para
graph (a), or
(ii) the last day of the relevant portion of the term of
imprisonment referred to in subsection (1) of section 2,
whichever is the earlier; and
(c) where the Board, upon reviewing the case of an inmate
pursuant to paragraph (b) does not at that time grant or
recommend parole to the inmate, continue to review the case
of the inmate at least once during every two years following
the date the case was previously reviewed until parole is
granted or the sentence of the inmate is satisfied.
5 SOR/60-216.
Pursuant to these paragraphs after reviewing
plaintiffs record on August 5, 1975, he was
advised that it would again be reviewed on August
5, 1977.
Reference was also made to section 8 of the
Parole Act itself which requires that "The Board
shall at the times prescribed by the regulations"
review the case of an inmate sentenced to two
years or more unless he has advised in writing that
he does not wish to be granted parole. Section 9
authorizes the making of regulations by order in
council prescribing "(a) the portion of the terms of
imprisonment that inmates shall serve before
parole may be granted; (b) the times when the
Board shall review cases of inmates serving sen
tences of imprisonment;". The Act thus authorizes
the making of regulations determining the mini
mum time which an inmate shall serve before
parole may be granted. This does not settle the
question of the retroactive effect of a change in the
regulations however, nor the question of whether a
change in regulations is merely a procedural
matter or one which affects the substantive rights
of plaintiff.
Defendant's principal argument was to the
effect that the granting of parole is a privilege and
not a right. That is undoubtedly so as is the
argument that the decision by the Parole Board to
grant or refuse to grant parole to an inmate is an
administrative act which should not be interfered
with by the Courts unless the rules of natural
justice have been infringed, which is not suggested
here. I find no difficulty however in making a
distinction between the granting of parole which is
a privilege to be exercised at the sole discretion of
the National Parole Board after a review of the
inmate's record and the making of such a review at
times required by the Act and Regulations made
thereunder, which in my view is a right. The
question to be decided is whether, when such a
right to review at a certain date is given by virtue
of the Regulations in force at the time of the
inmate's imprisonment, a subsequent regulation
can operate so as to postpone the date on which
this review must be made (save for an earlier
review which can also be made any time but only
if the Board considers that "special circum
stances" exist, by section 2(2) of the Regulations).
Reference might be made to the Interpretation
Act 6 . It is clear from it that the same principles
which govern the retroactive effect of an Act also
apply to regulations, for section 2(1) defines
"enactment" as "an Act or regulation or any
portion of an Act or regulation". Section 35 reads
in part:
35. Where an enactment is repealed in whole or in part, the
repeal does not
(b) affect the previous operation of the enactment so
repealed or anything duly done or suffered thereunder;
(c) affect any right, privilege, obligation or liability
acquired, accrued, accruing or incurred under the enactment
so repealed;
It will be noted that paragraph (c) refers to a
"privilege" as well as to a "right". The next sec
tion deals with the repeal and substitution of an
enactment. It is interesting to note that paragraph
(e) reads as follows:
36....
(e) when any penalty, forfeiture or punishment is reduced or
mitigated by the new enactment, the penalty, forfeiture or
punishment if imposed or adjudged after the repeal shall be
reduced or mitigated accordingly;
It is of some significance that, while this para
graph has no direct application to the present case,
it refers to reduction or mitigation of penalties,
forfeitures or punishments, and there is no con
verse application when they are increased in the
new enactment, which is the situation in the
present case where, by the new regulation, the
period of time which the plaintiff was required to
serve before he can be considered eligible for
normal parole was increased from four to seven
years.
The Supreme Court case of Upper Canada Col
lege v. Smith' dealt at some length with the
question of retroactivity of a statute. The action
had been brought to recover a commission under a
contract made before a statute came into force
6 R.S.C. 1970, c. I-23.
7 (1921) 61 S.C.R. 413.
which prohibited the bringing of any action to
claim such a commission unless the agreement
upon which it was brought was in writing separate
from the sale agreement. The Court concluded,
with one dissenting judgment that this law should
not have retrospective effect. In his judgment,
Duff J. pointed out at page 418 that the right to
sue was a valuable right and that it was of no
importance that the right of action had not
accrued when the statute was passed. During the
course of his careful examination of the British
jurisprudence he states at pages 424-5:
A right in the legal sense, not only in the common language of
men but in the language of common lawyers everywhere,
connotes a right which the courts will protect and enforce by
some appropriate remedy.
This may be illustrated by a reference to statutes giving or
taking away a right of appeal. A right of appeal is, of course, a
remedial right and the courts have had to consider frequently
the question whether a statute giving or taking away a right of
appeal should prima facie be construed as affecting the parties
to pending litigation. If such statutes are to be regarded as
regulating procedure only within the meaning of this rule, then
prima facie their application would not be restricted to pro
ceedings subsequently instituted. Speaking broadly, the courts
have persistently refused to take this view of such statutes; they
have almost uniformly been held not to fall within the category
of statutes relating to procedure only.
At page 443 Anglin J. states:
Although statutes creating new remedies have sometimes been
held available to enforce rights which had accrued before they
were enacted, The Alex Larsen, 1 W. Rob. 288, at page 295;
Boodle v. Davis 22 L.J. Ex. 69, it is a very different thing to
hold that a statute has, in the absence of express provision or
necessary intendment, the effect of destroying an existing right
of action. The taking away of a right of action is more than
mere procedure and a statute which has that effect is prima
facie within the general rule and not within the exception.
In dealing with Acts of Parliament which have the effect
of taking away rights of action,
says Baron Channell in Wright v. Hale 6 H. & N. 227, at page
231,
we ought not to construe them as having a retrospective
operation, unless it appears clearly that such was the inten
tion of the legislature; but the case is different where the Act
merely regulates practice and procedure;
and Baron Wilde adds:
The rule applicable in cases of this sort is that, when a new
enactment deals with rights of action, unless it is so expressed
in the Act an existing right of action is not taken away. But
where the enactment deals with procedure only, unless the
contrary is expressed, the enactment applies to all actions
whether commenced before or after the passing of the Act.
As previously stated, although plaintiff had no
right, at the time of the 1973 amendment to the
Regulations, to be granted parole on August 5,
1975, since this is not a right but a privilege, he
did have what I consider to be a right to have his
file reviewed as of that date, this right having
accrued to him from the date of his incarceration
in 1971 and the amendment made in 1973 had the
effect of taking away this right by delaying for
three years his right to have his file reviewed by
the Parole Board. While the procedure of the
Parole Board requires the review of the files of
inmates at the times specified by the Regulations
in effect at any given time I cannot find that a
regulation delaying such right of review so as to
deprive an inmate, such as plaintiff, of a right to
review at a date already determined, is a mere
question of procedure.
In a subsequent Supreme Court case of Boyer v.
The King 8 Chief Justice Rinfret also makes a
thorough examination of the jurisprudence both
British and Canadian on the subject especially the
case of Upper Canada College v. Smith (supra)
from which he quotes a number of passages at
pages 96 and 97 including a reference to the
judgment of Lord Macnaghten in Colonial Sugar
Refining Co. v. Irving 9 in which he stated at page
372:
As regards the general principles applicable to the case there
was no controversy. On the one hand, it was not disputed that if
the matter in question be a matter of procedure only, the
petition is well founded. On the other hand, if it be more than a
matter of procedure, if it touches a right in existence at the
passing of the Act, it was conceded that, in accordance with a
long line of authorities extending from the time of Lord Coke
to the present day, the appellants would be entitled to succeed.
Reference has also been made in argument to
the fact that in the present case the National
Parole Board did in fact review plaintiff's record
on August 5, 1975, and proposes to do so again on
August 5, 1977, but in view of the position taken
that as a result of the 1973 amendment to the
Regulations plaintiff does not have the right to be
considered for parole under section 2(1)(a) until
August 5, 1978, it is reasonable to presume that
B [1949] S.C.R. 89.
9 [1905] A.C. 369.
the review made on August 5, 1975, was with a
view to determining whether there were special
circumstances justifying the granting of parole as
of that date by virtue of the provisions of section
2(2) of the Regulations, and that different norms
or criteria may have been applied in such a review
from those which would normally be applied to a
review by virtue of section 2(1)(a). The Court has
no information, as to whether the review made on
August 5, 1975 was by virtue of section 2(1)(a) or
of section 2(2) of the Regulations or whether
different norms and criteria would be applied, nor
are the nature of the norms and criteria applied a
proper matter for consideration by this Court, the
matter being an administrative one within the sole
discretion of the National Parole Board. All the
Court can state is that, if a review in the case of
the plaintiff was not made by virtue of section
2(1)(a) of the Regulations and in accordance with
the norms and criteria applied to such reviews,
then this should be done forthwith.
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.