T-6565-82
Athanasou Ziatas (Applicant)
v.
National Parole Board (Respondent)
Trial Division, Mahoney J.—Toronto, August 18;
Ottawa, August 26, 1982.
Judicial review — Prerogative writs — Certiorari — Na
tional Parole Board — Suspension of parole for breach of
condition — Failure to grant inmate's request for hearing
prior to termination of parole — Whether breach of statutory
duty — Whether decision made without jurisdiction —
Application allowed — Parole Act, R.S.C. 1970, c. P-2, ss. 10,
16(1),(3)— Parole Regulations, C.R.C., c. 1248, ss. 20, 20.1 as
amended by SOR/81-318, s. 1 — Canadian Charter of Rights
and Freedoms, being Part d of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7, 9.
The inmate's parole was suspended, then terminated for a
presumed breach of a condition respecting non-association. The
Parole Board failed to grant the inmate a hearing pursuant to
subsection 16(3) of the Parole Act prior to reaching its deci
sion. The issue is whether the Board acted in excess of jurisdic
tion even though it had the option to cancel the suspension of
parole and then to revoke the parole without granting a hear
ing. The inmate is applying for a writ of certiorari to quash the
Board's decision terminating parole without a post-suspension
hearing.
Held, the application is allowed with costs. Although the
Board's decision was one that could properly have been reached
by another avenue since the Board had elected to follow
subsection 16(3) of the Parole Act, the failure to satisfy the
requirements therein for a hearing is fatal. The inmate is
entitled to enjoy every procedural benefit provided by sections
20 and 20.1 of the Parole Regulations.
CASE JUDICIALLY CONSIDERED
REFERRED TO:
Ridge v. Baldwin, [1964] A.C. 40.
APPLICATION for judicial review.
COUNSEL:
R. G. Bigelow for applicant.
B. Mann for respondent.
SOLICITORS:
R. G. Bigelow, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: The applicant was released from
custody on day parole June 15, 1982. It was a
condition of his day parole that he was:
Not to associate with any members past or present of the
Vagabond Group or members of Outlaw Group.
The groups referred to are so-called motorcycle
gangs. On his release, the applicant was picked up
from the institution by individuals recognized by
the authorities as members of one of the groups.
When he reported later that day, as required, to a
correctional centre, his parole was suspended for
apparent violation of the condition and he was
returned to custody. The applicant requested a
post-suspension hearing. The respondent, without
such hearing, terminated the parole. The applicant
seeks a writ of certiorari quashing that decision on
the ground that it was made without and in excess
of jurisdiction in that:
1. The respondent breached its statutory duty by
failing to grant him a hearing prior to deciding
to terminate the parole.
2. It breached a duty to act fairly by failing to
grant the hearing.
3. It breached a duty to act fairly by failing to
advise him that he would not be granted a
hearing and allowing him to make representa
tions in some other form.
4. It breached the rights guaranteed him by
sections 7 and 9 of the Canadian Charter of
Rights and Freedoms, being Part I of the Con
stitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.).
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in
accordance with the principles of fundamental justice.
9. Everyone has the right not to be arbitrarily detained or
imprisoned.
"Day parole" is, by definition, "parole". Other
pertinent provisions of the Parole Act' follow:
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.
(2) The Board or any person designated by the Chairman
may terminate a temporary absence without escort granted to
an inmate pursuant to section 26.1 or 26.2 of the Penitentiary
Act or the day parole of any paroled inmate and, by a warrant
in writing, authorize the apprehension of the inmate and his
recommitment to custody as provided in this Act.
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.
(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.
The Parole Regulations, C.R.C., c. 1248, provide:
20....
(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.
' R.S.C. 1970, c. P-2.
20.1 (1) Where a hearing is conducted pursuant to subsec
tion 15(1) or 20(2), the Board shall permit the inmate to be
assisted by a person of his choice.
(2) An inmate shall be responsible for securing the attend
ance at a hearing referred to in subsection (1) of the person
referred to in that subsection.
(3) The person referred to in subsection (1) shall be entitled
(a) to be present at the hearing at all times when the inmate
he is assisting is present at the hearing;
(b) to advise the inmate in respect of questions put to that
inmate by the Board during the hearing; and
(c) at the conclusion of the hearing, to address the members
of the Board conducting the hearing, for a period of ten
minutes, on behalf of the inmate.
Subsections (1) and (2) of section 10 vest the
respondent with independent powers. The proce
dures prescribed by sections 20 and 20.1 of the
Regulations have no application to its exercise of
the power to terminate a day parole under subsec
tion 10(2). It seems open to the respondent to
cancel a suspension of parole and then to exercise
its discretion under subsection 10(2). That, how
ever, is not what happened here. The suspension
was not cancelled. The case was before the
respondent on a referral pursuant to subsection
16(3) of the Act and sections 20 and 20.1 of the
Regulations were required to be observed. That is
not altered by the facts that the respondent's
decision was one that could properly have been
reached by another avenue and that termination is
less severe than revocation in that no loss of remis
sion or addition of "dead time" ensues. There was
no dead time, the period between suspension and
apprehension, in this instance.
Having concluded that the application must suc
ceed on the first ground, I do not have to deal with
the others and do not do so beyond regretting that
I do not find it open to apply the test proposed by
Lord Evershed in his dissenting judgment in Ridge
v. Baldwin: 2
Was justice done in all the circumstances of this case?
The record satisfies me that, in all respects, justice
was clearly done.
2 [ 19641 A.C. 40 at p. 97.
JUDGMENT
The respondent's decision, dated June 24, 1982,
terminating the applicant's day parole is quashed.
The applicant is entitled to his 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.