T-5905-81
Leslie William Gregson (Applicant)
v.
National Parole Board (Respondent)
Trial Division, Smith D.J.—Winnipeg, December
14, 1981 and September 16, 1982.
Parole — Application to quash decision of National Parole
Board revoking applicant's mandatory supervision and refus
ing recredit of remission — Post-suspension hearing held after
applicant's release on mandatory supervision was suspended
— Board maintained suspension on ground applicant repre
sented undue risk to community — Applicant appeared at
hearing without legal counsel and now says neither he nor
assistant who was with him were aware loss of remission
would result from revocation of mandatory supervision, that
Board failed to advise of such possibility or ask questions
related to that issue and that neither he nor assistant made
submissions on point — Applicant's request for review of case
to reconsider recrediting remission refused by Board in reli
ance on s. 106-4 of National Parole Board Policy and Proce
dures Manual on ground that applicant's behaviour did not
warrant recrediting remission because it did not fall within
parameters set by Board for such action — Whether Board
erred in exercising discretion under s. 20(3) of Parole Act by
basing decision entirely on policy in National Parole Board
Policy Manual — Application dismissed — Parole Act, R.S.C.
1970, c. P-2, s. 9(1)(m) (as am. by S.C. 1976-77, c. 53, s. 24),
s. 20(2),(3) (as am. idem, s. 31) — Parole Regulations, SOR/
78-428, s. 20(2).
This is an application for an order removing the decision of
the respondent revoking the applicant's mandatory supervision,
with no recredit of remission, into the Federal Court and
quashing the said decision in so far as the respondent refused to
grant the applicant any recredit of remission. The applicant
was released on mandatory supervision in September 1980, but
in May 1981, was returned to custody. After conducting a
post-suspension hearing, the National Parole Board advised the
applicant that his release on mandatory supervision had been
revoked on the ground that because of a pattern of domestic
violence and alcohol use during the period of release, he
represented an undue risk to the community. As a result of the
Board's decision the applicant lost thirteen months of remis
sion. He had appeared at the hearing without legal counsel and
asserts that neither he nor the assistant who appeared with him
were aware that a loss of remission would flow from revocation
of his mandatory supervision. The applicant further says that
the Board did not advise him of such a possibility or ask
questions related to that issue and that neither he nor his
assistant made any submissions on the point. A request for a
review of his case for the purpose of reconsidering recrediting
remission was refused on the ground that, in the Board's view,
the applicant's behaviour did not warrant recrediting of remis
sion as it did not fall within the parameters set by the National
Parole Board for such action. This position was taken in direct
reliance on section 106-4 of the National Parole Board Policy
and Procedures Manual. The applicant contends that the Board
erred in basing its decision on the provisions of its policy
manual.
Held, the application should be dismissed. Subsection 20(2)
of the Parole Act provides that where a parole is revoked the
inmate shall serve the portion of his term of imprisonment that
remained unexpired at the time he was granted parole includ
ing any statutory or earned remission. The effect of this
subsection, which is to make loss of remission automatic when
parole is revoked, applies in all cases subject to the unlimited
discretionary power of the Board under subsection 20(3) to
recredit remission in whole or in part subject only to the
regulations, of which there are none yet. Section 106-4 of the
National Parole Board Manual, which sets out grounds for
such recrediting does not have the force of a regulation. The
power of the Board under subsection 20(2) is not to be exer
cised arbitrarily but where, in the Board's opinion, the circum
stances justify excepting the case from the operation of the
general rule. The Board is required to examine each case on its
merits in determining this and it should not limit its discretion
by setting a general policy. The statement in the Manual that
the power to recredit remission is to be used only in exceptional
circumstances is not invalid. However, in this case the issue lies
in whether the Board based its decision not to recredit remis
sion on that statement or whether it examined the circum
stances as a whole. The applicant is entitled to succeed only if
the former is true. The Court does not have the record of the
Board's decision; rather it has only the Board's letter to the
applicant from which it can determine the basis of the decision
taken. These letters lack vital information relating to the exact
basis for the reasons for not recrediting remission and what the
Board said about these reasons, however, the policy manual is
not mentioned. In fact, the letters outline valid reasons for the
decision, other than adherence to Board policy. Based on this it
appears that the Board, in making its decision, did not govern
itself by a restricting policy expressed in the Manual or fail to
consider all of the relevant facts and circumstances.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
The King v. Port of London Authority, [ 1919] 1 K.B. 176
(C.A.); In re North Coast Air Services Limited, [1972]
F.C. 390 (C.A.).
COUNSEL:
A. Peltz for applicant.
T. K. Tax and K. Post, for respondent.
SOLICITORS:
Arne Peitz, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
SMITH D.J,: This is an application for an order
removing into this Court the decision of the
respondent dated August 5, 1981, revoking the
applicant's mandatory supervision with no recredit
of remission, to quash the said decision in so far as
the respondent refused to grant the applicant any
recredit of remission.
The application is made on the following
grounds:
(I) that the decision to deny recredit of remission was made in
excess of jurisdiction;
(2) that the Respondent violated Section 20(3) of the Parole
Act in considering and determining whether to recredit the
whole or any part of the Applicant's remission;
(3) that the Board unlawfully and wrongfully fettered its
discretion by relying upon and applying a policy as set forth in
the National Parole Board Policy Manual as Section 106-4
thereof;
(4) that the Board violated the common law duty of fairness
and Section 2(e) of the Canadian Bill of Rights, and in
particular, neglected to consider and take into account all
relevant facts in the course of exercising its discretion under
Section 20(3) of the said Act;
(5) and upon such further and other grounds as counsel may
advise and this Honourable Court may allow.
The application further seeks an order of man-
damus directing the Board to reconvene a hearing
pursuant to the said Act [Parole Act, R.S.C. 1970,
c. P-2] and the Parole Regulations, SOR/78-428,
and in particular subsection 20(2) of the Parole
Regulations, and to consider and determine
whether or not to recredit the whole or any part of
the statutory and earned remission of the applicant
which stood to his credit when he was granted
mandatory supervision.
The facts, as stated in the affidavit of the appli
cant, may be summarized as follows:
In October 1972, the applicant was sentenced to
six years imprisonment for manslaughter. In Janu-
ary 1978, he was sentenced to a further term of
four years, consecutive to the first, for assault. On
September 21, 1980, he was released under man
datory supervision and obtained employment as a
truck driver. He also entered into a common law
relationship with a woman in Winnipeg.
On May 28, 1981, his mandatory supervision
was suspended and he was returned to custody at
Stony Moûain Institution. No criminal charges
were laid against him as a result of any activities
taking place while he was at liberty. On August 5,
1981, he appeared before the National Parole
Board for a post-suspension hearing. His assistant,
a chapel volunteer, who is not a lawyer and has no
legal training, was present. At the conclusion of
the hearing the Board adjourned to consider its
decision. It then advised him that his mandatory
supervision had been revoked with no recredit of
remission, and subsequently, by letter dated
August 13, 1981, he received written notification
of the decision.
In his affidavit the applicant stated that at the
time of the hearing neither he nor his assistant was
aware of the loss of remission that would flow
from a revocation of his mandatory supervision,
and further that the Board did not advise him of
this consequence, nor did it ask any questions
related to this issue. Neither he nor his assistant
made any submission to the Board with respect to
recredit of remission.
Counsel for the Board did not dispute any of the
foregoing affidavit evidence, but it does seem
strange that a man who had been in prison for
nearly eight years, along with many others in the
same situation, had not become aware of this
serious consequence of revocation of mandatory
supervision. Unfortunately the applicant did not
have legal counsel with him at the hearing. If he
had been so represented, the argument in favour of
recrediting all or part of his remission time would
have been made then and this application would
not have been necessary.
As a result of the Board's decision the applicant
lost thirteen months remission of sentence.
The Board's letter of August 13, 1981 (Exhibit
"A" to the applicant's affidavit), which confirmed
its decision to revoke his mandatory supervision
with no recredit of remission, gave the following
reasons for its decision to revoke mandatory
supervision.
—admits to violating his abstain clause on several occasions as
well as assaulting his common-law wife on approximately four
occasions.
—given his pattern of violence in domestic relationships previ
ously and his use of alcohol during this period of supervision,
we believe he represents an undue risk to the community.
On November 18, 1981, Mr. R. M. Halko,
Regional Manager, Case Supervision, wrote the
applicant's counsel as follows (Exhibit "D" to the
applicant's affidavit):
This is further to your letter of October 26, 1981 regarding
Mr. Gregson.
You are inquiring in your letter about the possibility of
having Mr. Gregson's case reviewed again by National Parole
Board Members for the consideration of possibly recrediting
remission.
When Mr. Gregson's Mandatory Supervision was revoked in
August, 1981 the National Parole Board Members indicated
that there would be no recrediting of remission because Mr.
Gregson's case did not warrant such action. That is, according
to the facts of Mr. Gregson's case and the violations associated
with his Mandatory Supervision his case did not fall into the
parameters set by the National Parole Board for recrediting of
remission. As you have stated in your letter these guidelines can
be found in Section 106-4 of the National Parole Board Policy
and Procedures Manual.
To date, we are not in possession of any information that
would change the circumstances which existed in Mr. Greg-
son's case at the time his Mandatory Supervision was revoked
with no recredit of remission in August, 1981. It will only be on
that basis that a further review of Mr. Gregson's case would be
warranted by National Parole Board Members; separate of
course from any new application for parole or day parole that
may be initiated by Mr. Gregson.
Therefore, I must inform you at this time that no further
review of Mr. Gregson's case is planned by the National Parole
Board. If you are in possession of information which would
alter the complexion of Mr. Gregson's case as it existed in
August, 1981 that would now place it into the guidelines for
recrediting of remission, might I suggest that you forward this
data to us. Under those conditions very probably the Parole
Board Members would be interested in reconsidering Mr. Greg-
son's case for a possible recredit of remission.
At this point the relevant provisions of the
Parole Act should be noted:
Paragraph 9(1)(m), enacted by S.C. 1976-77, c.
53, s. 24:
9. (1) The Governor in Council may make regulations
(m) prescribing the terms and conditions under which the
Board may recredit to an inmate the remission, or any part
thereof, that he is required to serve as a result of the
revocation of his parole;
Subsections 20(2) and (3), enacted by S.C.
1976-77, c. 53, s. 31, read:
20....
(2) Subject to subsection (3), when any parole is revoked,
the paroled inmate shall, notwithstanding that he was sen
tenced or granted parole prior to the coming into force of this
subsection, serve the portion of his term of imprisonment that
remained unexpired at the time he was granted parole, includ
ing any statutory and earned remission, less
(a) any time spent on parole after the coming into force of
this subsection;
(b) any time during which his parole was suspended and he
was in custody;
(c) any remission earned after the coming into force of this
subsection and applicable to a period during which his parole
was suspended and he was in custody; and
(d) any earned remission that stood to his credit upon the
coming into force of this subsection.
(3) Subject to the regulations, the Board may recredit the
whole or any part of the statutory and earned remission that
stood to the credit of an inmate at the time he was granted
parole.
Counsel for the applicant stated that no regula
tions had been passed dealing with recredit of
remission. Counsel for the respondent made no
comment on this statement. I have not found any
such regulations. There is however, a Policy and
Procedures Manual, apparently adopted on April
16, 1980, by the Board, one part of which deals
with "Recrediting of Remission after Revocation".
This part is numbered 106-4. It reads, in part, as
follows:
106-4...
4. GROUNDS FOR RECREDITING REMISSION
4.1 Recrediting of remission is always considered by the
Board at the time of the decision to revoke, but, as a
matter of policy, the Board may recredit remission within
two (2) months of a revocation.
4.2 Recrediting of remission is a power given to the Board
as an exceptional remedy to be used only in exceptional
circumstances.
4.4 Remission should be recredited only when revocation
becomes necessary because of circumstances beyond the
inmate's control such as:
This is followed by five paragraphs giving exam
ples of such circumstances, none of which have any
application in this case.
The Manual does not contain regulations. This
part, 106-4, contains guidelines only. A subsequent
heading in the Manual is 106-25, "Recrediting of
Remission". Its first paragraph has some relevance
to this case. It reads:
106-25...
1. If a case does not fall within the guidelines for recrediting
of remission (Section 106-4, paragraph 4.4), the decision not
to recredit remission will be made at the time of the revoca
tion. While it is not necessary in these instances to render a
formal decision not to recredit remission, the comment sheet
should reflect the rationale for this decision.
And paragraph 5 reads:
106-25...
5. A decision either to recredit or not to recredit remission
must be recorded on a separate decision sheet.
Neither the decision sheets nor the comment
sheets for the decisions to revoke and not to
recredit in this case are in evidence.
All that is before the Court are the Board's
letters of August 13 and November 18, 1981
(supra). The letter of August 13, 1981, which, as
stated above, gave reasons for its decision to
revoke mandatory supervision, neither stated any
other reasons for its decision not to recredit remis
sion, nor indicated that the reasons for the two
decisions were the same. If this letter stood alone I
would have little difficulty in concluding that what
the Board intended was that the reasons for revo
cation applied also to the decision not to recredit.
However, the letter of November 18, 1981, to the
applicant's counsel, stated, as quoted supra, in
reply to a question asked by counsel:
When Mr. Gregson's Mandatory Supervision was revoked in
August, 1981, the National Parole Board Members indicated
that there would be no recrediting of remission because Mr.
Gregson's case did not warrant such action. That is, according
to the facts of Mr. Gregson's case and the violations associated
with his Mandatory Supervision his case did not fall into the
parameters set by the National Parole Board for recrediting of
remission. As you have stated in your letter these guidelines can
be found in Section 106-4 of the National Parole Board Policy
and Procedures Manual.
Counsel for the applicant argued from what is
stated in the foregoing paragraph that the Board
had based its decision not to recredit remission
solely on the guidelines set out in section 106-4 of
the Board's Manual, and had not considered the
question on the merits of this case. He argued
forcefully that the Board had no right to make a
decision in this manner. He submitted, correctly,
that the guidelines are not law, not being made by
the Governor in Council, as required by paragraph
9(1)(m) of the Parole Act. They merely express
the Board's view of the grounds on which recredit-
ing of remission may be granted.
Subsection 20(3) gives the Board unlimited dis
cretionary power, subject to the regulations, (of
which there are none) to recredit the whole or any
part of an inmate's statutory and earned remission.
Counsel's contention is that this subsection
requires the Board to look into the merits of each
case and decide it on its view of the merits. The
subsection says nothing to indicate that remission
is an exceptional remedy to be used only in excep
tional circumstances and only when revocation of
mandatory supervision becomes necessary because
of circumstances beyond the inmate's control.
Therefore he submits that it is improper and not
within the power of the Board to limit or restrict
the exercise of its discretion in the manner set out
in section 106-4 of its Policy and Procedures
Manual.
Counsel for the respondent submits that on the
statements made in the Board's two letters (supra)
there is a question whether the Board made its
decision not to recredit remission on the basis of
the provisions of section 106-4 of the Manual or
whether it did in fact consider all the circum
stances of the case and reach its decision on its
view of those circumstances. In answer to the
applicant's argument as a whole she cited several
judicial decisions. I refer to two of these. The first
is:
The King v. Port of London Authority, [1919] 1
K.B. 176 (C.A.). Discussing the question of policy,
Bankes L.J. said at page 184:
There are on the one hand cases where a tribunal in the honest
exercise of its discretion has adopted a policy, and, without
refusing to hear an applicant, intimates to him what its policy
is, and that after hearing him it will in accordance with its
policy decide against him, unless there is something exceptional
in his case. I think counsel for the applicants would admit that,
if the policy has been adopted for reasons which the tribunal
may legitimately entertain, no objection could be taken to such
a course. On the other hand there are cases where a tribunal
has passed a rule, or come to a determination, not to hear any
application of a particular character by whomsoever made.
There is a wide distinction to be drawn between these two
classes.
In In re North Coast Air Services Limited,
[ 1972] F.C. 390 (C.A.), at page 406, Jackett C.J.
quoted the foregoing passage, with obvious approv
al of the line of demarcation drawn in the earlier
case. In both cases it was clear that the tribunal in
question had adopted a general policy with respect
to the exercise of its discretion to issue licences. In
The King v. Port of London Authority it was held
that on the facts there had been no refusal by the
Port Authority to consider and exercise their dis
cretion according to law, and that in view of their
position, powers and duties, the Authority was
justified in adopting a general policy in granting
licences under section 109 of the Thames Conserv-
ancy Act, 1894, 57 & 58 Vict., c. 187, s. 109. In
the North Coast Air Services case it was held that
the Canadian Transport Commission had given
licensees a fair opportunity to make representa
tions against the Commission's policy of protecting
the routes served by class 1 and class 2 carriers
against the operations of class 4 (commercial)
carriers. In furtherance of this policy the Commis
sion had amended the licences of class 4 carriers,
so as to prohibit such carriers from carrying traffic
between points on a route served by a class 1 or
class 2 carrier. The ground for the policy was that
stated in subsection 16(8) of the Aeronautics Act,
R.S.C. 1970, c. A-3, that public convenience and
necessity required it.
In my view, both of these cases are readily
distinguishable from the present case. In the Port
of London Authority case the Authority was
charged with the duty of developing the Port of
London, a very large, busy port on the Thames
River, with enormous, growing traffic. Among its
powers as a public body were those of constructing
large wharves, docks and numerous dock facilities.
It refused the application of private entrepreneurs
for a licence to construct a large wharf, with docks
and numerous buildings, covering a wide area of
the Port, on the ground that this was a function
with which it was itself charged, as a public body,
with carrying out and therefore, as a matter of
policy, it would not license private persons or
corporations to do so. It was held that the refusal
was within the discretionary power of the
Authority.
In the North Coast Air Services case the Air
Transport Committee of the Canadian Transport
Commission, which has wide responsibilities and
powers over the development and operation of air
services throughout Canada, including the discre
tionary power to grant licences to operate flying
services over specific routes, had established a
policy that it would not grant to the large commer
cial airlines (class 4), which operated aircraft
flying between major cities and over long dis
tances, licences to fly between places along routes
that were being served by smaller airlines (classes
1 and 2) with generally smaller aircraft. Class 1
and class 2 airlines serve smaller communities than
class 4 airlines, and operate largely in remote parts
of the country, not heavily populated. Air services
to those parts of the country are important, but the
traffic is relatively light. No doubt the Commis
sion felt that if the large commercial airlines were
permitted to serve the same places as the class 1
and class 2 airlines, at least some of these small
airlines would be unable to operate successfully
and would be driven out of business, with the
result that many communities would lose air ser
vice altogether. Thus, in its view, public conve
nience and necessity clearly indicated that class 4
airlines should not be licensed to compete directly
with class 1 and class 2 airlines by serving places
along the same routes. The policy adopted was
within the Commission's discretionary power.
In the Port of London Authority case the Au
thority, in effect, was laying down a general policy
for the purpose of ensuring that its function of
constructing wharves and other facilities of the
kind involved in the application before it would be
protected and not usurped by private individuals or
groups. In the North Coast Air Services case the
Commission was acting in accordance with a gen
eral policy, which it felt was necessary, to protect,
in the public interest, small airlines against becom
ing non-viable by reason of competition from large
commercial airlines.
The function of the Board in the present case
was to determine whether the applicant, in the
circumstances of this case, should be recredited
with some or all of the remission of sentence which
he would lose under subsection 20(2) of the Parole
Act. The Board has a wide discretion under sub
section 20(3) to grant or refuse recredit, subject
only to regulations of which there are none as yet.
To my mind it is obvious that, in the absence of
regulations, the Board is required to examine each
case on its merits and make its decision in accord
ance with the conclusion it reaches in the light of
the circumstances of that case. The Board should
not, by setting a general policy, limit its discretion
in such cases.
Counsel for the applicant submitted that the
particular restrictions set out in section 106-4 of
the Policy and Procedures Manual should be held
invalid. He objected to the policy statement
expressed in paragraph 4.2 that the power to
recredit remission was to be used only in excep
tional circumstances. I do not agree. It is true that
subsection 20(3) of the Act says nothing expressly
about exceptional circumstances, but subsection
20(2) makes loss of remission automatic when
parole is revoked. This rule applies in all cases,
subject to the power of the Board to recredit
remission in whole or in part. This power is not
intended to be exercised arbitrarily, but only where
the circumstances justify, in the Board's opinion,
removing, in whole or in part, the penalty imposed
by the general rule in subsection 20(2). In other
words, the circumstances must justify excepting
the case from the operation of the general rule.
Counsel's second objection is to the policy state
ment in paragraph 4.4 that recreditation of remis
sion should only be granted when revocation
becomes necessary because of circumstances
beyond the inmate's control, which is followed by
several examples of those kinds of circumstances.
In my view this objection is sound. The Board
should be in a position to grant recredit of remis
sion whenever, in its opinion, the circumstances of
the case warrant such action. I see no ground for
holding that subsection 20(3) of the Act means
that the Board can, by stating a policy, prevent
itself from recrediting remission in any circum
stances other than where revocation has become
necessary because of circumstances beyond the
inmate's control. In my view this paragraph is
invalid.
The foregoing conclusion does not decide the
issue in this case. The question remains whether
the Board did in fact base its decision not to
recredit remission on the terms of the policy
described in section 106-4 of the Manual or did it
examine all the circumstances and make its deci
sion on the basis of its view of the circumstances as
a whole. If the first of these alternatives is correct
the applicant, in my opinion, is entitled to succeed,
but not if the second alternative represents the true
facts. The answer is made difficult by the fact that
not all the evidence on this question is before the
Court. As stated earlier, neither the decision sheet
for the decision to revoke mandatory supervision
nor the decision sheet for the decision not to
recredit remission, referred to in section 106-25.5
of the Manual, is in evidence, nor is the comment
sheet for either decision, referred to in section
106-25.1. We have no evidence that these docu
ments were actually prepared, but as the appli
cant's counsel has not raised any question on this
point, I assume they were prepared. However, we
do not know just what they contain.
The only evidence we have about the reasons for
the two decisions is found in the Board's letters of
August 13 and November 18, 1981 referred to
supra. For the purpose of dealing with the ques
tion now under consideration, it is necessary to
examine these letters again in greater detail. The
letter of August 13, 1981, states:
This is to confirm the Board's decision of Mandatory Super
vision Revoked with no recredit of remission.
The Board revoked your mandatory supervision for the fol
lowing reasons:
This is followed, in two paragraphs, by the
reasons for the decision, quoted supra.
The first sentence indicates one decision—to
revoke mandatory supervision with no recredit of
remission, not two decisions. I therefore assume
that the reasons stated for the decision to revoke
are intended to apply to the whole decision. I note,
in addition, that in the letter the reasons stated are
within quotation marks, which to my mind indi
cates that they are quoted from another document,
probably the decision sheet or the comment sheet.
The letter of November 18, 1981, quoted in full
supra, contains in its third paragraph, some expla
nation of the reasons for non-recredit of remission,
including a reference to the parameters set by the
National Parole Board, as found in section 106-4
of the Manual. No part of the letter is within
quotation marks, nor is there anything to suggest
that it is anything more than the writer's recollec
tion of things said by the Board. Even that is not
certain. The letter was written by R. M. Halko,
Regional Manager, Case Supervision, National
Parole Board. The names of the Board members
who dealt with the applicant's case, are not dis
closed in the evidence. It seems unlikely that an
official of the Board like Mr. Halko would be a
member of a Board panel dealing with specific
cases. In fact there is no evidence that Mr. Halko
was present at the Board sitting which decided the
applicant's case. The result is that the Court does
not know the exact source of the information
concerning the reasons for not recrediting remis
sion that are contained in the letter. Nor do we
know exactly what the Board said about those
reasons.
It is unfortunate that neither the decision sheet
nor the comment sheet, or copies of them, one or
other of which must contain the reasons expressed
by the Board for not recrediting remission, have
been produced to the Court. The consequence is
that the only exact statement of the reasons for the
Board's decision is that contained in the two
quoted paragraphs of the letter of August 13,
1981, which paragraphs, and indeed the whole
letter do not mention the Policy and Procedures
Manual or anything contained in it. On the con
trary those paragraphs contain quite different rea
sons for the decision than adherence to parameters
of a Board policy. Those reasons are valid.
After a careful review of the incomplete evi
dence that is before me I am unable to find that
the Board, in making its decision, was governing
itself by a restricting policy expressed in the
Manual, or that it did not consider all the relative
facts and circumstances.
The application must be dismissed, but in the
circumstances there will be no costs allowed to the
respondent.
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.