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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.
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