T-7785-82
Brian Reuben Starr (Applicant)
v.
National Parole Board (Respondent)
Trial Division, Nitikman D.J.—Winnipeg,
November 4 and December 2, 1982.
Parole — Applicant released from penitentiary on tempo
rary absence permit because mandatory supervision release
date fell on Sunday — Committing indictable offences before
mandatory supervision came into effect — National Parole
Board revoking mandatory supervision — Board acting with
out jurisdiction — Decision quashed on certiorari — Parole
Act, R.S.C. 1970, c. P-6, ss. 6 (as am. by S.C. 1976-77, c. 53,
s. 23), 10(1)(e), 15(2), 16(1) (as am. idem, s. 29).
The applicant was released from penitentiary on March 5,
1982, on a temporary absence permit, for administrative rea
sons, two days before his mandatory supervision release date
which fell on a Sunday. He was subsequently convicted of
committing offences on March 5 and 6, for which he received a
further term of one year imprisonment. The National Parole
Board revoked the applicant's mandatory supervision with no
recredit of remission. The applicant seeks certiorari on the
grounds that mandatory supervision could not be revoked when
he was never released on mandatory supervision, or that the
Board's consideration of the applicant's behaviour while on
temporary absence was an irrelevant consideration.
Held, certiorari granted and the decision of the National
Parole Board quashed. The applicant did not breach his man
datory supervision as he was not under mandatory supervision
when the offences were committed. Nor was he at any time
under mandatory supervision since he was in custody from the
time of his apprehension one day before mandatory supervision
was slated to take effect. Nor was he a "paroled inmate" from
March 7, 1982, and therefore, he could not have his parole
revoked under section 6 and paragraph 10(1)(e) of the Parole
Act.
COUNSEL:
Judy Elliot for applicant.
T. K. Tax for respondent.
SOLICITORS:
Legal Aid Manitoba, Ellen Street Commu
nity Legal Services, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
NITIKMAN D.J.: On March 4, 1982 the appli
cant was granted an unescorted temporary absence
permit by the Saskatchewan Penitentiary, at
Prince Albert, Saskatchewan, to take effect on
March 5, 1982. The applicant's mandatory super
vision release date fell on Sunday, March 7, 1982,
as appears from an affidavit of Robert Gillies, civil
servant, of the City of Saskatoon, in the Province
of Saskatchewan, the senior member of the
respondent Board for the Prairie Region, who
deposed:
3. Generally, where an inmate's Mandatory Supervision release
date falls on a week-end or statutory holiday, an Unescorted
Temporary Absence Permit will be issued to facilitate his
release a day or two earlier, for administrative reasons. In this
particular case, the Applicant's Mandatory Supervision release
date fell on Sunday, March 7, 1982, and for this reason only,
an Unescorted Temporary Absence Permit was issued, to take
effect on Friday, March 5, 1982, in order to facilitate the
Applicant's release on Mandatory Supervision.
As well, on March 5, 1982 the applicant
received a certificate of mandatory supervision,
effective March 7, 1982. The certificate of manda
tory supervision reads in part:
This is to certify that Brian Starr, who was serving a term of
imprisonment in Saskatchewan Penitentiary, was released
under mandatory supervision on March 7, 1982.
As directed in the certificate of mandatory
supervision, the applicant proceeded to Regina,
Saskatchewan and on March 5, reported to his
parole supervisor. Within hours after his arrival in
Regina, the applicant became reinvolved in new
criminal offences and on the same day was arrest
ed and charged with the offence of trespassing. He
was detained in custody, his application for bail
having been refused. The applicant pleaded guilty
and was, on March 19, 1982, sentenced to 15 days
incarceration. The day prior to the date he was due
for release he was charged with having, on the 6th
day of March, committed two offences of unlaw
fully breaking and entering dwellings in Regina
and, on March 25, 1982, was sentenced to a term
of one year in the Saskatchewan Federal Peniten
tiary at Prince Albert, in the said Province, con-
secutive to the sentence then being served by him.
In Gillies' affidavit, he sets out the proceedings
following the applicant's conviction on March 25:
7. By virtue of the fact that the Applicant was being held in
custody, first, by reason of the new criminal charges, and then
by reason of the Warrants of Committal referred to in para
graph 6 herein [Warrants of Committal upon conviction and
sentences imposed as earlier mentioned], no Warrant of Appre
hension and Suspension of Parole pursuant to Subsection 16(1)
of the Parole Act was issued. However, the Applicant's case
was referred to the National Parole Board by the Parole
officials in Regina, Saskatchewan, as a result of the Applicant's
re-involvement in criminal activity. The case was referred to
the National Parole Board to determine whether or not the
Applicant's Mandatory Supervision should be revoked, and if
so, whether remission lost, should be recredited.
8. On April 5, 1982, upon referral of the Applicant's case to the
National Parole Board, the Board asked Parole officials in
Regina, Saskatchewan to attend on the Applicant and ask him
whether or not he wanted a hearing prior to the Board making
the decision referred to in paragraph 7 herein.
9. On April 6, 1982, the Applicant requested that a hearing be
held before any decision was made concerning the possible
revocation of his mandatory supervision. The Applicant waived
his right to fourteen (14) days notice of the hearing, and as a
result, the matter was set with other matters to be heard by the
National Parole Board, in May, 1982, at Stony Mountain
Institution. Attached hereto and marked as Exhibit "E" to this
my Affidavit is a copy of the Applicant's application for
hearing dated April 6, 1982.
10. On May 12, 1982, the Applicant appeared before the
National Parole Board at Stony Mountain Institution. The
Board members present were Dorothy Betz and Robert Gillies.
The Applicant waived his right to have an assistant of his
choice present, and thereafter, the Board members shared all
relevant information with the Applicant. A decision was made
to reserve or adjourn the matter pending legal advice on this
matter. The Applicant stated that he would want a further
hearing once the Board members obtained the information they
had requested.
11. On July 8, 1982, the National Parole Board reconvened the
Applicant's hearing at Stony Mountain Institution. The Board
members present at that time were Ken Howland and Mike
Maccagno. After hearing the Applicant and reviewing all the
relevant facts and circumstances of the case, the Board mem
bers present made a decision to revoke the Applicant's Manda
tory Supervision with no recredit of remission ....
The applicant moves for an order:
... removing into this Court the determination made by the
Respondent, The National Parole Board, on July 8th, 1982,
whereby the said Respondent purported to revoke the Appli
cant's mandatory supervision, together with all other matters,
things and documents incidental or relevant thereto, and all
papers and matters in connection therewith, to bring the said
determination to be quashed upon the following grounds:
1. THAT the said revocation of mandatory supervision was made
without jurisdiction and contains errors of law on the face of
the record.
2. THAT the Respondent, The National Parole Board, erred in
law and acted without jurisdiction in purporting to revoke the
Applicant's mandatory supervision when the Applicant was
never released on mandatory supervision.
3. THAT in the alternative to ground 2 herein, the Respondent,
The National Parole Board, exceeded its jurisdiction by taking
into account irrelevant considerations—that is by considering
the Applicant's behaviour while on temporary absence in
deciding whether or not to revoke the Applicant's mandatory
supervision.
AND UPON such further and other grounds as may be disclosed
by the Record and as counsel may advise and this Honourable
Court may allow.
As set out in the material already referred to, on
March 5 and 6, 1982, until his apprehension, the
applicant was on an unescorted temporary absence
permit. It was not until March 7 that his mandato
ry supervision permit was slated to come into
effect.
The offences the applicant was convicted of
were committed on March 6, while he was under
the said temporary absence permit. He was
apprehended on the same day and having been
refused bail, was held in custody until he was
returned to the Saskatchewan Penitentiary at
Prince Albert, pursuant to the warrants of com
mittal upon conviction for the offences of unlawful
break and enter committed on March 6, as earlier
set out.
Two results follow. The applicant committed the
offences in question while he was on an unescorted
temporary absence permit. He did not breach his
mandatory supervision as he was not under man
datory supervision when the offences were commit
ted. Neither was he under parole.
The applicant's counsel referred to unescorted
temporary absence as a privilege as against man
datory supervision, which is a right. I incline to
accept that differentiation. Additionally, the appli
cant was at no time under mandatory supervision
since, as earlier pointed out, he was in custody
from the time of his apprehension on March 6
until he was returned to the Saskatchewan Peni
tentiary at Prince Albert under the warrants of
committal. I conclude that there was no mandato-
ry supervision to be revoked as he was at no time
under mandatory supervision.
Counsel for the respondent referred to section 6
and paragraph 10(1)(e) of the Parole Act, R.S.C.
1970, c. P-2, as am. by S.C. 1976-77, c. 53, which
respectively read:
6. Subject to this Act, the Penitentiary Act and the Prisons
and Reformatories Act, the Board has exclusive jurisdiction
and absolute discretion to grant or refuse to grant parole or a
temporary absence without escort pursuant to the Penitentiary
Act and to revoke parole or terminate day parole.
10. (1) The Board may
(e) in its discretion, revoke the parole of any paroled inmate
other than a paroled inmate to whom discharge from parole
has been granted, or revoke the parole of any person who is
in custody pursuant to a warrant issued under section 16
notwithstanding that his sentence has expired.
And in his written submissions summarizing oral
argument, as requested by me from both counsel,
he wrote in part:
9. It is the Respondent's submission that there is no ambiguity
within the Parole Act insofar as it relates to the revocation of
an inmate's parole. Sections 6 and 10(1)(e) of the Parole Act
are both clear and unambiguous. Clearly, the Board has the
power and jurisdiction to revoke the parole of any inmate
subject to the terms and conditions of parole or mandatory
supervision. As of March 7, 1982, the Applicant became a
"paroled inmate", and he would not have been subject to
imprisonment by reason of his sentence, but for his own actions
in involving himself as he did, in criminal behaviour within
hours of his release from the Saskatchewan Penitentiary.
I do not agree that on March 7, 1982, the
applicant became a "paroled inmate". And in so
holding, I have not overlooked the provisions of
subsection 15(2) of the Act, which reads:
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 supervi
sion were terms and conditions of his parole.
I hold accordingly that the Board, in ordering
the applicant's mandatory supervision revoked
with no recredit of remission, acted without juris
diction and the order cannot stand. In arriving at
this decision, I have not, as well, overlooked sub
section 16(1) [as am. by S.C. 1976-77, c. 53, s.
29], which reads:
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.
This section deals with the suspension of parole
and apprehension of a paroled inmate and, in my
opinion, has no application here.
I therefore order that certiorari issue to remove
the decision of the National Parole Board ordering
the applicant's mandatory supervision revoked
with no recreditation of remission into this Court,
and that the said decision and any orders or war
rants based thereon be quashed.
Counsel for the respondent, in opening his argu
ment, stated that the facts here were unusual and
unique. I agree. Having that in mind, I order that
there be no 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.