T-107-90
Shawn Milner (Applicant)
v.
National Parole Board (Respondent)
INDEXED AS: MILNER v. CANADA (NATIONAL PAROLE BOARD)
(T.D.)
Trial Division, Addy J.—Vancouver, January 22
and 24, 1990.
Parole — Parole Regulations, s. 16.1(2) providing Board
"shall" hold hearing pursuant to s. 21.4(2)(b) not later than
thirteen weeks prior to presumptive release date — Hearing
erroneously set for date less than thirteen weeks from pre
sumptive release date — Nothing indicating intention to make
s. 16.1(2) mandatory — Neither Act nor Regulations providing
consequences for non-compliance with provision — 1986
amendments to Act substituting presumptive release date for
mandatory release enacted to protect public from consequences
of release — "Shall" merely directory — Parole Board having
jurisdiction to proceed with hearing.
Construction of statutes — Parole Regulations, s. 16.1(2)
providing Board "shall" hold hearing not later than certain
date — Whether "shall" imperative or directory — When
provision relating to performance of public duty, necessary to
look to object of Act, injustice caused to persons having no
control over those entrusted with duty, consequences flowing
from non-compliance, and any indicators of intention to make
provision mandatory — Object of statutory amendment to
protect public against consequences of release on parole
"Shall" merely directory.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Parole Act, R.S.C., 1985, c. P-2, s. 21.3(1) (as enacted
by R.S.C., 1985 (2nd Supp.), c. 34, s. 5), (2) (as
enacted idem).
Parole Regulations, SOR/78-428, s. 16.1(2) (as enacted
by SOR/86-817, s. 4).
CASES JUDICIALLY CONSIDERED
APPLIED:
Montreal Street Railway Company v. Normandin,
[1917] A.C. 170 (P.C.); Melville (City of) v. Attorney
General of Canada, [1982] 2 F.C. 3; (1981), 129 D.L.R.
(3d) 488 (T.D.); Apsassin v. Canada (Department of
Indian Affairs and Northern Development), [1988] 3
F.C. 20; [1988] 1 C.N.L.R. 73; (1987), 14 F.T.R. 161
(T.D.).
COUNSEL:
Patricia A. Sasha Pawliuk for applicant.
Esta Resnick for respondent.
SOLICITORS:
Patricia A. Sasha Pawliuk, Abbotsford, Brit-
ish Columbia, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
ADDY J.: The applicant is requesting a writ of
prohibition against the respondent to prohibit the
respondent from conducting a hearing pursuant to
subsection 21.3(2) of the Parole Act [R.S.C.,
1985, c. P-2 (as enacted by R.S.C., 1985 (2nd
Supp.), c. 34, s. 5)]. Subsections 21.3(1) and (2)
read as follows:
21.3 (1) The Commissioner shall cause the case of an
inmate to be reviewed by the Service, before the presumptive
release date of the inmate, where the inmate is serving a term
of imprisonment that includes a sentence imposed in respect of
an offence mentioned in the schedule that had been prosecuted
by the indictment.
(2) Where the Service, after reviewing the case of an inmate
pursuant to subsection (1), is of the opinion that
(a) the inmate is serving a term of imprisonment that
includes a sentence imposed in respect of an offence men
tioned in the schedule that has been prosecuted by
indictment,
(b) the commission of the offence caused the death of or
serious harm to another person, and
(c) there are reasonable grounds to believe that the inmate is
likely to commit, prior to the expiration according to law of
the sentence the inmate is then serving, an offence causing
the death of or serious harm to another person,
the Service shall, not later than six months before the presump
tive release date of the inmate, refer the case to the Board
together with all information that, in the opinion of the Service,
is relevant to the case.
These provisions, along with several other sec
tions in the Act, were added as part of an amend
ment to the Parole Act enacted in •1986. There is
no dispute that the applicant was properly sen-
tenced pursuant to an offence which was prosecut
ed by indictment and which caused serious harm
to another person. Therefore, the sole matter to be
determined by the Parole Board would be that
raised in paragraph 21.3(2)(c) above quoted,
namely whether there are reasonable grounds to
believe that the inmate is likely to commit, prior to
the expiration of the sentence, an offence causing
death or serious harm to another person.
There is no dispute about the fact that the case
was referred by the Commissioner to the Board six
months previous to the presumptive release date
(formerly the mandatory release date).
Subsection 16.1(2) of the regulations [Parole
Regulations, SOR/78-428 (as enacted by SOR/86-
817, s. 4)] issued pursuant to the Parole Act reads
as follows:
16.1 . . .
(2) The hearing held by the Board pursuant to paragraph
15.4(2)(b) [now 21.4(2)(b)] of the Act shall be held
(a) not later than thirteen weeks prior to the inmate's
presumptive release date, where the case of an inmate has
been referred to the Board or the Chairman of the Board
seventeen weeks or more prior to that date;
The sole question to be determined is whether
the word "shall" in section 16.1(2) of the Regula
tions above mentioned is imperative or directory.
Should it be imperative, then the Parole Board will
have lost all jurisdiction to hear the case and the
applicant will be entitled as of right to be released
on parole on the 11th of March, 1990.
He was formally advised on the 8th of October,
1989 that the hearing before the Board would take
place on February 15, 1990. He had been previ
ously advised in September that the hearing would
be some time in February. There are obviously not
thirteen weeks left between the due date of pre
sumptive release and the date originally set for the
hearing. It is undisputed that the date of February
15 was set in error and that as soon as the respond
ent became aware of the error, shortly after the
15th of October, the hearing was immediately
re-scheduled for the 19th of January, 1990. An
earlier date was not set at the time, in order to
ensure that the applicant would have sufficient
time to prepare his case. When the present
application was launched in the Federal Court, the
hearing before the Parole Board was again
re-scheduled for the 6th of February in order to
give the Court time to rule as to whether or not the
Parole Board still had jurisdiction in the matter.
In the decision of the Privy Council in Montreal
Street Railway Company v. Normandin, [1917]
A.C. 170 (P.C.), we find the following statement
of law by Sir Arthur Channell, at pages 174 and
175 of the report:
The statutes contain no enactment as to what is to be the
consequence of non-observance of these provisions. It is con
tended for the appellants that the consequence is that the trial
was coram non judice and must be treated as a nullity.
It is necessary to consider the principles which have been
adopted in construing statutes of this character, and the
authorities so far as there are any on the particular question
arising here. The question whether provisions in a statute are
directory or imperative has very frequently arisen in this coun
try, but it has been said that no general rule can be laid down,
and that in every case the object of the statute must be looked
at. The cases on the subject will be found collected in Maxwell
on Statutes, 5th ed., p. 596 and following pages. When the
provisions of a statute relate to the performance of a public
duty and the case is such that to hold null and void acts done in
neglect of this duty would work serious general inconvenience,
or injustice to persons who have no control over those entrusted
with the duty, and at the same time would not promote the
main object of the Legislature, it has been the practice to hold
such provisions -to be directory only, the neglect of them,
though punishable, not affecting the validity of the acts done.
Collier, J. of this Court approved and applied
the above-mentioned principle in the case of Mel-
ville (City of) v. Attorney General of Canada,
[1982] 2 F.C. 3 (T.D.). At page 14 of the report
we find the following:
The section, and the statute, is designed to compel regula-
tion-making bodies to make their regulations public. But, the
provisions requiring timely transmission to the Clerk of the
Privy Council, do not, in my view, make, this Order in Council
ineffective. I apply the principle laid down in Montreal Street
Railway Company v. Normandin [1917] A.C. 170, to the
situation here. I quote from the Privy Council opinion at pages
174-175:...
I also dealt with a similar problem when consid
ering the effect of non-compliance of the provi
sions of a statute in the case of Apsassin v. Canada
(Department of Indian Affairs and Northern De
velopment), [1988] 3 F.C. 20 (T.D.) The following
statement can be found, at page 71:
Examination of the object of the statute reveals that a
decision which would render the surrender null and void solely
because of non-compliance with the formalities of subsection
51(3) would certainly not promote the main object of the
legislation where all substantial requirements have been ful
filled; it might well cause serious inconvenience or injustice to
persons having no control over those entrusted with the duty of
furnishing evidence of compliance in proper form. In the sub
section, unlike subsection (1), where it is provided that unless it
is complied with no surrender shall be valid or binding, there is
no provision for any consequences of non-observance. I there
fore conclude that the provisions of subsection 51(3) are merely
directly and not mandatory.
In deciding whether the word "shall" in subsec
tion 16.1(2) of the Regulations is directory or
imperative one must, therefore, consider whether
there are provisions somewhere in the statute
which might clearly indicate that it was the legis
lator's intention to make the provision mandatory.
If so, then obviously the Court must give effect to
the intention of the legislature. Also in the present
case there are no consequences of any kind indicat
ed in the Act or the Regulations which would flow
from non-conformance with the provision regard
ing a hearing to be held at least thirteen weeks
before the projected date of release nor is there
anything to indicate that the stipulation would be
mandatory. As there is no such indication, then
one must consider the general object of the legisla
tion. As to the general object of the Parole Act, it
seems to be clear that the Act itself and, more
particularly, the amendments introduced in 1986,
which substituted a presumptive release date for
mandatory release, was enacted not only for the
purpose of benefitting the prisoners but also, and
mainly for the protection of the public against the
possible consequences of a release from parole,
since the absolute right of the inmate for release
on parole when a certain portion of the sentence
served has been removed and release becomes
subject to control by the Parole Board.
One can well imagine the danger to which the
public might be exposed in certain cases if the
provision were to be considered imperative. By a
mere clerical error, as in the present case, an
habitual psycopathic murderer would have to be
released on his presumptive release date regardless
of the fact that he might be considered a very
dangerous criminal and most likely to kill again.
I have no difficulty in the present case in finding
that "shall" in subsection 16.1(2) of the Regula
tions is merely a directory and that, therefore, the
Parole Board still has a jurisdiction to proceed
with the hearing.
The respondent will be entitled to the costs of
this application.
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.