Howarth v. National Parole Board, [1976] 1 SCR 453

Supreme Court of Canada

Howarth v. National Parole Board, [1976] 1 S.C.R. 453

Date: 1974-10-11

Lenard John Howarth Appellant;

and

National Parole Board Respondent.

1974: May 14, 15; 1974: October 11.

Present: Laskin C.J. and Martland, Judson, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Courts—Supervisory power—Parole—Revocation order by Parole Board—Order not required to be made on a judicial or quasi-judicial basis—Order not reviewable by Federal Court of Appeal—Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.

The Federal Court of Appeal quashed an application under s. 28 of the Federal Court Act to review an order of the National Parole Board revoking a parole granted to appellant. It was held that the order was of an administrative nature not required by law to be made on a judicial or quasi-judicial basis. Appellant obtained leave to appeal to this Court.

Held (Laskin C.J. and Spence and Dickson JJ. dissenting): The appeal should be dismissed.

Per Martland, Judson, Pigeon, Beetz and de Grandpré JJ.: Section 28 of the Federal Court Act operates as an exception to the general provision of s. 18, whereby supervisory jurisdiction over federal boards is wholly transferred from the Superior Courts of the Provinces to the Trial Division of the Federal Court. The new remedy created by s. 28 is restricted in its application to judicial decisions or to administrative orders required by law to be made on a judicial or quasi-judicial basis. A section 28 application leaves intact all the common law remedies in cases where it is without application.

In Ex parte McCaud, this Court affirmed the judgment of Spence J. holding, on an application for a writ of habeas corpus with respect to an order revoking the applicant’s parole, that it was “a decision within the discretion of the Parole Board as an administrative matter and is not in any way a judicial determination”. Therefore it was correctly held that the revocation order in question was “not required by law to be made on a judicial or quasi-judicial basis”. No use was made for

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reconsidering what was decided in Ex parte McCaud. The new wording of what is now s. 16(4) of the Parole Act which adds an explicit direction to the Board to make inquiries before reaching its decision does not imply an intention to require the Board to act on a judicial or quasi-judicial basis in revoking a parole.

Per Beetz J.: The implications of s. 20 of the Parole Act are unfortunate. However, this does not change the nature of the decision of the Parole Board when it revokes a parole granted to an inmate.

Per Laskin C.J. and Spence and Dickson JJ., dissenting: Section 18 of the Federal Court Act confers upon the Trial Division of the Federal Court exclusive original jurisdiction to issue prerogative, writs and to grant declaratory relief against any federal board, commission or other tribunal, but the Trial Division has only such jurisdiction in respect to prerogative writs as is not conferred by s. 28(1) upon the Appeal Division. If the jurisdiction conferred on the Federal Court of Appeal by s. 28(1) is to be rendered unavailable, the impugned decision or order must meet two criteria: (1) it must be of an administrative nature, and (2) the board or tribunal must be free of any duty to decide on a judicial or quasi-judicial basis, that is, free of any obligation to give effect to the principle of natural justice. The duty of acting judicially may be implied from the nature of the power given to the board or other tribunal in question, the power to deal with the personal or property rights of the subject being a criterion. The seriousness of the consequence or deprivation for the individual affected by the decision of the board or tribunal exercising statutory powers is manifestly the principal factor in determining whether the board or other tribunal is required to act judicially or quasi-judicially. It is not necessary that a body should be a court of law or that it have before it a form of lis inter partes before it falls under a duty to act judicially.

In cases where the National Parole Board decides, under s. 16 of the Parole Act, to revoke a parole, it is acting in a judicial capacity because the orders of the Board have a conclusive effect, not being subject to appeal or review (s.23); they are adjudicative, not investigatory or advisory; and they have a serious adverse effect upon “rights”. In deciding the Board makes two

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separate and distinct determinations: (a) Have the terms and conditions of parole been violated? (b) If so, is revocation warranted? Parole revocation may seriously and adversely affect “rights” of a paroled inmate. When an inmate is granted parole, he is entitled to expect that if he observes the terms and conditions of his parole and is otherwise of good behaviour, he will remain at large. Serious consequences result from revocation of parole, including reincarceration, loss of statutory remission, and no credit for time served on parole.

In Ex parte McCaud, Spence J. was adverting to the traditional distinction between a decision of a judicial nature and a decision of an administrative nature and not to the novel type of decision introduced by s. 28(1) of the Federal Court Act, which came into effect after the judgment was delivered in McCaud. Since McCaud, s. 16(4) of the Parole Act has been amended to require the Board upon referral to it of the case of a paroled inmate whose parole has been suspended, to make the necessary inquiries and upon reviewing the evidence so obtained, to reach a decision. This amendment serves to aid in characterizing the parole revocation function of the National Parole Board as judicial or quasi-judicial and in distinguishing between McCaud and the case at bar.

[Ex parte McCaud, [1965] 1 C.C.C. 168, followed. St.John v. Fraser, [1935] S.C.R. 441; Ridge v. Baldwin, [1963] 2 All E.R. 66; Durayappah v. Fernando, [1967] 2 A.C. 337; Morrisey v. Brewer (1972), 92 S. Ct. 2593; Brooks v. Pavlick, [1964] S.C.R. 108; R. v. Manchester Legal Aid Committee, ex parte R.A. Brand & Co. Ltd., [1952] 2 Q.B. 413; R. v. Brighton and Area Rent Tribunal, [1950] 2 K.B. 410; Board of Health for the Township of Saltfleet v. Knapman, [1956] S.C.R. 877; R. v. Gaming Board, [1970] 2 All. E.R. 528; In re Nakkuda Ali v. Jayaratne, [1951] A.C. 66; Bonanza Creek Hydraulic Concession v. The King (1908), 40 S.C.R. 281, referred to.]

APPEAL from a judgment of the Federal Court of Appeal[1] quashing an application to review an

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order of the National Parole Board revoking a parole. Appeal dismissed, Laskin C.J. and Spence and Dickson JJ. dissenting.

R.R. Price, for the appellant.

A. c. Pennington and R.G. Vincent, for the respondent.

The judgment of Laskin C.J. and Spence and Dickson JJ. was delivered by

DICKSON J. (dissenting)—The question in this appeal is whether the Federal Court of Appeal has jurisdiction to entertain a motion to review or set aside an order of the National Parole Board revoking a parole. The question is an important one for the law has erected manifold safeguards to protect the civil rights of a person accused of crime, and gives to a person released on probation a protective shield of due process, (Criminal Code s. 664) but has hitherto evinced small regard for the civil rights of a person to whom parole has been granted. It falls now to decide whether the enactment of the Federal Court Act has changed all of that.

As the question at this time is only one of jurisdiction, properly speaking no facts have yet been found. The facts alleged however on behalf of the appellant, Lenard John Howarth, are these: Howarth is held in close custody at Joyceville Institution/Canadian Penitentiary Service. He was sentenced on February 25, 1969 to a term of seven years for armed robbery. He was granted parole on May 6, 1971, and during the academic years 1971-72 and 1972-73 was enrolled as a full-time student in the Faculty of Sociology at Queen’s University. He was gainfully employed almost continually from the date of his release on parole until suspension of the parole. On or about August 3, 1973, his parole was suspended and he was taken into custody. A charge of indecent assault was laid against him. To this charge he pleaded not guilty and September 18, 1973, was set as the date for a

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preliminary inquiry into the charge. On September 14, 1973, however, the charge against him was withdrawn. Notwithstanding, four days later he was advised that his parole had been revoked by the National Parole Board on September 11, 1973, and he has continued in custody. He avers that, though he has repeatedly requested it, at no time has he been given any statement of the reason for revocation of his parole. The Parole Board says it is under no duty to enlighten Mr. Howarth nor to give him an opportunity to be heard.

Section 28(1) of the Federal Court Act reads:

Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal

(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or

(c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

The apparent purpose and effect of s. 28(1) is generally to assure judicial review by the Federal Court of Appeal of the decisions or orders of all federal boards, commissions and other tribunals—and by definition the National Parole Board is a federal board—upon one or more of the three stated grounds. Its ambit embraces all decisions or orders of a judicial nature and certain decisions and orders of a purely administrative nature. The

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only decisions or orders of an administrative nature which are outside or beyond judicial supervisory range are those to be found within the double-negative phrase “other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis.” The two faces of the exception are not disjunctive: both have to be present. Decisions and orders of an administrative nature are indeed reviewable, the only exception being those which are “not required by law to be made on a judicial or quasi-judicial basis.” The question therefore which must be asked, is whether there is anything which requires the National Parole Board, in deciding whether to revoke a parole, to act on a judicial or quasi-judicial basis. Counsel for the Board properly concedes that such a duty may be statutory or may arise at common law.

Section 18 of the Act confers upon the Trial Division of the Federal Court exclusive original jurisdiction to issue the prerogative writs and to grant declaratory relief against any federal board, commission or other tribunal but the Trial Division has only such jurisdiction in respect of the prerogative writs as is not conferred by s. 28(1) upon the Appeal Division. This is clear from the prefatory words of s. 28(1), “Notwithstanding section 18” and from s. 28(3) of the Act which provides that where the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, the Trial Division has no jurisdiction to entertain any proceeding in respect of that decision or order. The grounds upon which the “review and set aside” remedy of s. 28 is made available are essentially the same as, though broader than, those on which certiorari traditionally is issued to quash administrative decision. The combined effect of ss. 28(1) and 28(3) would seem to be to narrow the jurisdiction of the Trial Division in respect of certiorari to the point of disappearance but to make available in the Court of Appeal the new and enlarged “review and set aside” remedy in respect of deci-

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sions or orders of federal boards, commissions or tribunals. The only decisions or orders exempted from this all-embracing jurisdiction are those of “an administrative nature not required by law to be made on a judicial or quasi-judicial basis.” If the jurisdiction conferred on the Federal Court of Appeal by s. 28(1) is to be rendered unavailable, the impugned decision or order must meet two criteria (1) it must be of an administrative nature, (2) the board or tribunal must be free of any duty to decide on a judicial or quasi-judicial basis i.e. free of any obligation to give effect to the principles of natural justice. The word “judicial” may refer to those duties which are discharged in public by a judge following formal legal procedures in resolving a lis inter partes or it may refer to administrative duties which need not be discharged in public and to the discharge of which a large measure of policy and expediency may properly be applied but in respect of which certain elemental norms of justice and fair play must be brought to bear, minimally the right to know and to respond before suffering serious loss. It means, as Davis J. said in St. John v. Fraser[2], at p. 452 “that the tribunal, while exercising administrative functions, must act ‘judicially’ in the sense that it must act fairly and impartially.” Whether or not such a duty to act judicially exists will depend upon the circumstances of the particular case and the construction of the relevant statute. The duty of acting judicially may be implied from the nature of the power given to the board or other tribunal in question, the power to deal with the personal or property rights of the subject being a criterion. The seriousness of the consequence or deprivation for the individual affected by the decision of the board or tribunal exercising statutory powers is manifestly the principle factor in determining whether the board or other tribunal is required to

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act judicially or quasi-judicially. Ridge v. Baldwin[3]; Durayappah v. Fernando[4], at pp. 349-352; Morrisey v. Brewer[5], (U.S. Sup. Ct.), at pp. 2600-2601. An administrative board, the decisions of which are made according to policy and not formal legal standards may, at some point in the course of reaching a decision come under a duty to conform to the principles of natural justice. In Brooks v. Pavlick[6], the Court observed that the Master of Titles of Ontario was bound to act judicially in the performance of his primary administrative duty.

It is not necessary that a body should be a court of law or that it have before it a form of lis inter partes before it falls under a duty to act judicially: R. v. Manchester Legal Aid Committee, ex parte R.A. Brand & Co. Ltd.[7]. The cases show that such a duty may rest upon an administrative body deciding whether to expel an unruly student, or ordering the destruction of a dilapidated house, or ousting a member from a private club. A tribunal may be required to act judicially although entitled to act on its own knowledge and information, without evidence unless submitted and without a hearing: R. v. Brighton and Area Rent Tribunal[8].

In Board of Health for the Township of Saltfleet v. Knapman[9], this Court found that a duty to act judicially rested upon a local board of health empowered to order premises vacated and if necessary to eject the occupants forcibly upon the board’s being “satisfied upon due examination” that the house has become unfit or dangerous. Cartwright J., as he then was said, p. 879:

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I agree with Gale J. that in deciding whether or not such condition exists a duty to act judicially rests upon the board. It would, I think, require the plainest words to enable us to impute to the Legislature the intention to confer upon the local board the power to forcibly eject the occupants of the building for certain specified causes without giving such occupants an opportunity to know which of such causes was alleged to exist or to make answer to the allegation: and I find no such words in the statute or the schedule.

Revocation of parole is not a part of the criminal prosecution and a paroled prisoner can hardly be regarded as a “free” man. He stands charged and convicted by due process of law. While paroled he is still a convicted prisoner. But he has been given a large measure of freedom as part of the rehabilitative process and the imminent loss of that freedom does not find him entirely without rights. I fail to see how it can be contended that parole is a mere privilege or act of grace and favor, on the part of the Parole Board, conferring no rights on the parolee and subject to withdrawal at will. The parolee is given his liberty and an opportunity to be reunited with his family and friends, to further his education, to seek and obtain employment and subject to the terms of his parole and the statute to enjoy the privileges of a free man and the prospect of ultimate restoration of full civil status. All of this is a precious right. It cannot be argued successfully that the parolee remains in the custody of the warden of the prison or the parole board and that parole and revocation of parole are mere changes in the form of custody. Confinement in a cell and liberty under parole are simply not comparable. Though subject to the supervision of a parole officer, the liberty of a parolee is extensive and is extinguished by incarceration. By any test, incarceration upon revocation of probation is deprivation of freedom.

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The question of confidentiality of information was raised during argument. There are here competing considerations. On the one hand, divulgence may render informants fearful of reprisals; on the other hand, non-disclosure may inhibit the parolee in his attempt to controvert or refute that which has been placed against him and, additionally, lead to the acceptance of false and idle reports of “faceless informers”. The answer to the argument respecting confidentiality is to be found in R. v. Gaming Board[10], in which Lord Denning said, p. 533, “If the board were bound to disclose every detail, that might itself give the informer away and put him in peril. But, without disclosing every detail, I should have thought that the board ought in every case to be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer them. That is only fair. And the board must at all costs be fair. If they are not, these courts will not hesitate to interfere.”

I should have thought on the authority of the catena of cases cited by Lord Reid in Ridge v. Baldwin, supra, the only discordant note being struck in In re Nakkuda Ali v. Jayaratne[11], that there rested upon the National Parole Board a duty to observe the principles of natural justice.

Taking a somewhat different approach, namely, an analysis of the function of the National Parole Board and a characterization of that function, it would seem to me that the task of the Board is in part judicial or quasi-judicial and the Board is required by law to have a judicial or quasi-judicial basis for a decision to revoke parole.

The following provisions of the Parole Act, R.S.C. 1970, c. P-2 are relevant:

6. Subject to this Act and the Prisons and Reformatories Act, the Board has exclusive jurisdiction and

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absolute discretion to grant, refuse to grant or revoke parole. 1958, c. 38, s. 5.

10. (1) The Board may

(a) grant parole to an inmate, subject to any terms or conditions it considers desirable, if the Board considers that

(i) in the case of a grant of parole other than day parole, the inmate has derived the maximum benefit from imprisonment,

(ii) the reform and rehabilitation of the inmate will be aided by the grant of parole, and

(iii) the release of the inmate on parole would not constitute an undue risk to society;

…

(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.

11. The Board, in considering whether parole should be granted or revoked, is not required to grant a personal interview to the inmate or to any person on his behalf. 1958, c. 38, s. 9.

…

13. (1) The term of imprisonment of a paroled inmate shall, while the parole remains unrevoked and unforfeited, be deemed to continue in force until the expiration thereof according to law, and, in the case of day parole, the paroled inmate shall be deemed to be continuing to serve his term of imprisonment in the place of confinement from which he was released on such parole.

(2) Until a parole is revoked, forfeited or suspended, or except in accordance with the terms and conditions of a day parole, the inmate is not liable to be imprisoned by reason of his sentence, and he shall be allowed to go and remain at large according to the terms and conditions of the parole and subject to the provisions of this Act. 1968-69, c. 38, s. 101.

…

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16. (1) A member of the Board or any person designated by the Board may, by a warrant in writing signed by him, suspend any parole, other than a parole that has been discharged, and authorize the apprehension of a paroled inmate whenever he is satisfied that the arrest of the inmate is necessary or desirable in order to prevent a breach of any term or condition of the parole or for the rehabilitation of the inmate or the protection of society.

(2) A paroled inmate apprehended under a warrant issued under this section shall be brought as soon as conveniently may be before a magistrate, and the magistrate shall remand the inmate in custody until the suspension of his parole is cancelled or his parole is revoked or forfeited.

(3) The person by whom a warrant is signed pursuant to subsection (1) or any other person designated by the Board for the purpose shall forthwith after a remand by a magistrate of the paroled inmate named therein review the case and, within fourteen days from the time of such remand, either cancel the suspension of his parole or refer the case to the Board.

(4) The Board shall, upon the referral to it of the case of a paroled inmate whose parole has been suspended, review the case and cause to be conducted all such inquiries in connection therewith as it considers necessary, and forthwith upon completion of such inquiries and its review it shall either cancel the suspension or revoke the parole.

(5) An inmate who is in custody by virtue of this section shall be deemed to be serving his sentence. 1968-69, c. 38, s. 101.

Section 16 of the Act contemplates a two-stage procedure. Section 16(1) authorizes a member of the Board or any person designated by the Board to suspend a parole and authorize the apprehension “whenever he is satisfied that” (a) the arrest of the inmate is necessary or desirable in order to prevent a breach of any term or condition of the parole or for (b) the rehabilitation of the inmate or (c) the protection of society. Section 16(4) requires the Board, upon referral to it of the case of a paroled inmate whose parole has been suspended, to review the case and cause to be conducted all such inquiries as it considers necessary,

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following which it is required either to cancel the suspension or revoke the parole.

The nature and extent of the power of the Board and the manner of its exercise as well as the rights of a paroled inmate and the impact of the Board’s decision upon those rights may determine whether there rests upon the Board the duty to act judicially, which in turn implies judicial function.

In my opinion in reaching a revocation of parole decision the Board is acting in a judicial capacity because the order of the Board (1) has a conclusive effect (2) is adjudicative (3) has a serious adverse effect upon “rights.”

First, among the “tests” formulated by the late S.A. de Smith in Judicial Review of Administrative Action, 3rd ed. p. 68, for determining whether a statutory body is acting in a judicial capacity when performing a particular function is this—does the performance of the function terminate in an order which has conclusive effect? In amplification, the author states, “The decisions of courts are binding and conclusive, inasmuch as they have the force of law without the need for confirmation or adoption by any other authority and cannot be impeached (if the court has acted within its jurisdiction) indirectly in collateral proceedings. This characteristic is generally regarded as one of the essential features of judicial power, and a body exercising powers which are of a merely advisory, deliberative, investigatory, or conciliatory character or which do not have legal effect until confirmed by another body, or involve only the making of a preliminary decision, will not normally be held to be acting in a judicial capacity.” The decisions of the Board are not subject to appeal or review (s. 23). They are not investigatory or advisory. They are a final determination with conclusive effect.

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Second, revocation of parole proceedings are not an adversary process, but it would be unrealistic not to recognize that there may be a conflict and an issue between the concern of the parolee in retaining his conditional liberty and the concern of the state in ensuring that public safety is not jeopardized unreasonably by continuance of that liberty. On an allegation of parole violation there are two separate and distinct determinations. (a) Has he violated the terms and conditions of parole? (b) If so, is revocation warranted? The first is a factual determination, made by the Board upon all the evidence including information elicited as a result of the inquiries initiated by the Board. That evidence is measured against a fixed objective standard, the terms and conditions of the parole. The conclusion reached as to whether the paroled inmate violated parole is a conclusion upon the evidence, not upon whim or caprice and in this decision discretion and policy play little or no part.

In Bonanza Creek Hydraulic Concession v. The King[12], Duff J. in reference to a determination by the Minister of the Interior, said to be the “sole and final Judge” of the fact of default by the lessee in a lease of mining location, had this to say:

“Is then the function of the Minister in arriving at a decision upon that question of fact—as distinct from his function in declaring a forfeiture—a function of a judicial nature? Or is his power to decide the question an absolute power which—so long only as he acts in good faith—it is permissible to exercise without regard to the principles governing judicial or quasi-judicial inquiries?

I think it belongs to the former class. The stipulation imports inquiry, and a determination as the result of inquiry. It is not one of those cases in which a question is committed to the decision of an expert who is, solely or primarily to use Lord Esher’s phrase “to employ his own eyes, knowledge and skill”. It would be ridiculous to

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suppose either party to have contemplated that the minister should ascertain, from his own personal inspection of the ground and by use of his own knowledge and skill, whether a given amount had been expended by the lessees in a given year in the efficient working of their location. It must have been assumed that he would rely upon knowledge obtained at second hand—not by any means necessarily through evidence of such a character as would be admissible in the court of law—but by possessing himself of the results of the observation, knowledge, and investigations of others. Having then an inquiry of such a character provided for in an instrument inter partes—an inquiry which might, in the result, lead to the forfeiture of the rights of one of the parties—the proper view I think of the function of the person appointed to conduct it, there being nothing in the instrument to manifest a contrary intention, is that in the course of it he is bound to observe the requirements of substantial justice; and those requirements are not observed, if he reaches a decision adverse to the party whose rights may be thus affected, without first giving that party an opportunity both to know what is alleged against him, and to meet it.”

It is in the making of the second determination i.e. the terms and conditions of parole having been violated, is revocation warranted-that discretion and considerations of policy play their part. In my opinion the first determination partakes of the quality of a judicial or quasi-judicial determination and I confess grave concern that it should ever be reached without giving the subject of the inquiry some indication of what has been said against him and an opportunity to respond. Failure to do so can surely only engender bitter feelings of injustice.

It is clear that the Board, in considering whether parole should be revoked, is not required to grant a personal interview to the inmate or to any person on his behalf (s. 12), but this does not, expressly or by necessary implication, preclude an inmate from receiving from the Parole Board a statement of the reasons for revocation, or proposed revocation, of his parole; nor should it preclude the inmate from making such representations as he may wish, in writing, or at an informal hearing if the Board

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prefers. There is no doubt a paroled inmate, on revocation of parole proceedings, cannot claim to be entitled to the full panoply of rights accorded to an accused in a criminal prosecution but he is entitled under the law in my opinion to at least the minimal procedural protection to which I have referred.

Third, parole revocation may seriously and adversely affect “rights” of the paroled inmate. Generally speaking if “rights” are affected by the order or decision of a board or other tribunal the function will be classified as judicial or quasi-judicial and this is particularly so when the exercise of administrative power seriously encroaches on property rights or the enjoyment of personal liberty. I would reject out of hand any suggestion that because a paroled inmate is a convicted criminal he stands denuded of civil rights. Parole is a right which may be granted pursuant to the Parole Act; when granted the paroled inmate is entitled to expect that if he observes the terms and conditions of his parole and is otherwise of good behaviour, he will remain at large. The essence of parole is the release upon conditions.

The term of imprisonment of a paroled inmate is, while the parole remains unrevoked and unforfeited, deemed to continue in force until the expiration thereof according to. law. Section 13(2) of the Act provides, however, that until the Parole is revoked, forfeited, or suspended the inmate is not liable to be imprisoned by reason of his sentence, and he shall be allowed to go and remain at large according to the terms and conditions of the parole and subject to the provisions of the Act.

The gravity of the impact of revocation upon the rights of a parolee requires no emphasis. Upon revocation he is reincarcerated. He loses the statu-

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tory remission standing to his credit at the time of his release on parole (210 days in the case of Mr. Howarth) and he gets no credit for time served while on parole (779 days in the case of Mr. Howarth).

In short it does seem to me that one need not look far to find within the function of the National Parole Board, having regard to the nature of its duties and the disciplinary effect of its order, identifiable judicial features.

I would now advert to the decision of this Court in Ex parte McCaud[13], in which Mr. Justice Spence stated “The question of whether that sentence must be served in a penal institution or may be served while released from the institution and subject to the conditions of parole is altogether a decision within the discretion of the Parole Board as an administrative matter and is not in any way a judicial determination.” In McCaud’s case, Spence J. and the Court considered the claim of the paroled inmate to a right to a “hearing”. Counsel for McCaud relied only on the Bill of Rights. Spence J. was adverting to the traditional distinction between a decision of a judicial nature and a decision of an administrative nature and not to the novel type of decisions introduced by s. 28(1) of the Federal Act. The judgment in Ex parte McCaud was delivered prior to the introduction of s. 28 (1) of the Federal Court Act which now focuses attention on decisions or orders of federal boards which, though of an administrative nature, are nevertheless required to be made on a judicial or quasi-judicial basis. There is a further consideration. Since McCaud s. 16(4) of the Parole Act has been amended to require the Board upon the referral to it of the case of a paroled inmate whose parole has been suspended, to cause to be conducted all such inquiries as it considers necessary and the decision to cancel the suspension or revoke the parole is not to be made until completion of such inquiries and the Board’s review of the case. There is imposed, therefore, an

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obligation to make the necessary inquiries and upon the evidence so obtained and its review, to reach a decision. This amendment serves to aid in characterizing the parole revocation function of the National Parole Board as judicial or quasi-judicial and in distinguishing McCaud’s case from the present case.

I do not consider that Ex parte McCaud stands in the way of assuring a paroled inmate minimal procedural safeguards.

In the result I would allow the appeal, set aside the judgment of the Federal Court of Appeal and remit the proceedings to that Court to be dealt with under s. 28 of the Federal Court Act and the General Rules and Orders of the Federal Court of Canada applicable thereto.

The judgment of Martland, Judson, Pigeon and de Grandpré JJ. was delivered by

PIGEON J.—This is an appeal by leave of this Court from a judgment of the Federal Court of Appeal quashing an application under s. 28 of the Federal Court Act to review an order of the National Parole Board revoking a parole granted to the appellant. The reason for quashing the application was that the Board’s order was of an administrative nature not required by law to be made on a judicial or quasi-judicial basis.

In view of the argument addressed to the Court at the hearing, it must be stressed that s. 28 of the Federal Court Act operates as an exception to the general provision of s. 18, whereby supervisory jurisdiction over federal boards is wholly transferred from the superior courts of the provinces to the Trial Division of the Federal Court in the following words:

18. The Trial Division has exclusive original jurisdiction

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(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

The material part of s. 28 reads:

28. (1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground…

It will be seen that while supervisory jurisdiction over federal boards is conferred generally upon the Trial Division without any restriction as to the nature of the decision under consideration, the new remedy created by s. 28 is restricted in its application to judicial decisions of to administrative orders required by law to be made on a judicial or quasi-judicial basis. It is only in respect of such decisions or orders that the new remedy equivalent to an appeal is made available. Thus, the clear effect of the combination of ss. 18 and 28 is that a distinction is made between two classes of orders of federal boards. Those that, for brevity, I will call judicial or quasi-judicial decisions are subject to s. 28 and the Federal Court of Appeal has wide powers of review over them. The other class of decisions comprises those of an administrative nature not required by law to be made on a judicial or quasi-judicial basis. With respect to that second class, the new remedy of s. 28, the kind of appeal to the Appeal Division, is not available, but all the other remedies, all the common law remedies, remain unchanged by the Federal Court Act. The only difference is that the jurisdiction is no longer exercisable by the superior courts of the provinces, but only by the Trial

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Division of the Federal Court. The very fact that such a distinction is made shows that the s. 28 application is not intended to be available against all administrative board decisions.

The reason I am stressing this point is that in argument, Counsel for the appellant relied mainly on cases dealing with the duty of fairness lying upon all administrative agencies, in the context of various common law remedies. These are, in my view, completely irrelevant in the present case because a s. 28 application is an exception to s. 18 and leaves intact all the common law remedies in the cases in which it is without application. The Federal Court of Appeal did not consider, in quashing the application, whether the Parole Board order could be questioned in proceedings before the Trial Division. No facts were put in evidence and the only point dealt with was whether the impugned order was one that could be said to be required by law to be made on a judicial or quasi-judicial basis. In my view, this was the correct approach and it was also correctly held that the point was settled by the decision of this Court affirming the judgment of Spence J. in Ex parte McCaud[14], where he said (at p. 169):

The question of whether that sentence must be served in a penal institution or may be served while released from the institution and subject to the conditions of parole is altogether a decision within the discretion of the Parole Board as an administrative matter and is not in any way a judicial determination.

Those words were said, on an application for a writ of habeas corpus, with respect to an order revoking the applicant’s parole. I can perceive no material difference between the expression “not in any way a judicial determination” and “not required by law to be made on a judicial or quasi-judicial basis”.

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In my view, no case was made for reconsidering that decision. I fail to see how the enactment of the Federal Court Act could be considered as having the effect of changing the law in that respect, s. 28(1) clearly refers to the law as it stood at the time. The law concerning the duty of the Parole Board in making a decision on a parole had been conclusively determined by a recent judgment of this Court. Parliament should not be presumed to have acted in ignorance of that determination. In North British Railway v. Budhill Coal and Sandstone Company[15], Lord Loreburn said (at p. 127): “When an Act of Parliament uses a word which has received a judicial construction it presumably uses it in the same sense”.

With respect to subsequent amendments to the Parole Act, I cannot agree with the suggestion that the new wording of what is now s. 16(4) implies an intention to require the Board to act on a judicial or quasi-judicial basis in revoking a parole. At the time Ex parte McCaud was decided, s. 12.3 of the Parole Act (1958 (Can.), c. 38) read:

(3) The Board shall forthwith after a remand by a magistrate under subsection (2) review the case and shall either cancel the suspension or revoke the parole.

In the new section enacted by s. 101 of the Criminal Law Amendment Act, (1968-69 (Can)), the corresponding provision (now s. 16.4) reads:

(4) The Board shall, upon the referral to it of the case of a paroled inmate whose parole has been suspended, review the case and cause to be conducted all such inquiries in connection therewith as it considers necessary, and forthwith upon completion of such inquiries and its review it shall either cancel the suspension or revoke the parole.

With deference for those who may hold a different view, I cannot agree that the addition of an explicit direction to make inquiries has changed the administrative “review” of the parole suspen-

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sion by the Parole Board into a judicial or quasi-judicial operation. Practically all the argument addressed to us by Counsel for appellant merely tended to show that a case could possibly be made for some common law remedy, that the Parole Board must have a duty to act fairly, not that it has to decide on a judicial or quasi-judicial basis.

In Calgary Power Ltd. v. Copithorne[16], this Court rejected the contention that the duty to act judicially arose whenever private rights were affected. Martland J. said for the Court (at p. 30):

…the respondent submitted that a function is of a judicial or quasi-judicial character when the exercise of it effects the extinguishment or modification of private rights or interests in favour of another person, unless a contrary intent clearly appears from the statute. This proposition, it appears to me, goes too far in seeking to define functions of a judicial or quasi-judicial character. In determining whether or not a body or an individual is exercising judicial or quasi-judicial duties, it is necessary to examine the defined scope of its functions and then to determine whether or not there is imposed a duty to act judicially. As was said by Hewart L.C.J., in Rex v. Legislative Committee of the Church Assembly (1928, 1 K.B. 411 at 415):

In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be super-added to that characteristic the further characteristic that the body has the duty to act judicially.

This passage was cited with approval by the Judicial Committee of the Privy Council in Nakkuda Ali v. M.F.DeS. Jayaratne (1951 A.C. 66, 1950, 2 W.W.R. 927).

It should be noted that the denial of habeas corpus in McCaud was based exclusively on a finding that a revocation of parole is “a decision within the discretion of the Parole Board as an administrative matter and is not, in any way, a judicial determination”. In his reasons affirmed by

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the Court, Spence J. said (at p. 170):

Section 19 (now s. 23) of the Parole Act provides:

“19. An order, warrant or decision made or issued under this Act is not subject to appeal or review to or by any court or other authority.”

Were I of the opinion that there had been any action by the Board beyond its jurisdiction, I would not be of the opinion that the latter section would be effective to bar consideration by the Court.

Because, in my view, s. 28.1 of the Federal Court Act is inapplicable due to the nature of the decision under consideration, it is unnecessary to consider whether the opening words “Notwithstanding s. 18 or the provisions of any other Act” exclude the application of a provision such as s. 23 of the Parole Act or whether they refer only to provisions of the same kind as s. 18 of the Federal Court Act, that is a provision conferring jurisdiction to some court or tribunal. It is apparent that if those opening words are construed as nullifying every provision restricting or denying the judicial review of decisions of federal boards not coming within the stated exception, this means that beyond a transfer of jurisdiction an important change in the substantive law has been effected. On this point, I am expressing no opinion any more than on the question whether, notwithstanding s. 23 of the Parole Act, some remedy before the Trial Division of the Federal Court is open in a case like this.

I would dismiss the appeal.

BEETZ J.—I have had the advantage of reading the opinions of Mr. Justice Pigeon and of Mr. Justice Dickson.

I agree with Mr. Justice Pigeon.

It may be unfortunate that, Under s. 20 (1) of the Parole Act, statutory remission for time served on parole by an inmate and earned remission

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standing to an inmate’s credit at the time of his release on parole be lost automatically upon revocation, particularly since parole may be suspended and, presumably, revoked for reasons which are not necessarily connected with a breach of the terms or conditions of the parole. However, this in my view does not change the nature of the decision of the Parole Board when it revokes a parole granted to an inmate.

Appeal dismissed, LASKIN C.J. and SPENCE and DICKSON JJ. dissenting.

Solicitor for the appellant: Ronald R. Price, Kingston.

Solicitor for the respondent: The Deputy Attorney General of Canada, Ottawa.