Mitchell v. R., [1976] 2 SCR 570

Supreme Court of Canada

Mitchell v. R., [1976] 2 S.C.R. 570

Date: 1975-10-07

Fred Mitchell Appellant;

and

Her Majesty The Queen Respondent.

1974: October 15; 1975: October 7.

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

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Criminal law—Parole—Suspension on eve of expiry of sentence—Revocation after expiry date of sentence—Accused not made aware of reasons which prompted person designated by Board to suspend parole and reasons which later prompted Board to revoke parole—Whether accused entitled to writ of habeas corpus with certiorari in aid—Whether s. 2(c)(i) and s. 2(e) of Canadian Bill of Rights, R.S.C. 1970, App. III, applicable—Parole Act, R.S.C. 1970, c. P-2, ss. 16, 20.

The appellant was sentenced to a total term of imprisonment of three years and two months following his conviction of a number of offences. His term of imprisonment began on November 2, 1970, and was to expire on January 1, 1974. On November 9, 1971, he was released on parole which was suspended on September 6, 1972. The suspension was cancelled on September 20, 1972, and the parole was continued. On December 24, 1973, the appellant was arrested without reason or explanation but he learned from a warrant of committal of December 27, 1973, that his parole had been suspended on December 24, 1973. He remained in custody pursuant to the suspension past what would otherwise have been his release date of January 1, 1974, and was still in custody on February 8, 1974, when the National Parole Board by a warrant of apprehension of that date revoked his parole. Finally, by a magistrate’s warrant of committal dated March 5, 1974, which, inter alia, recited the revocation of parole, the appellant was committed to prison to serve again a substantial portion of the term to which he was originally sentenced.

An application by the appellant for habeas corpus with certiorari in aid was dismissed by the Manitoba Court of Queen’s Bench. The dismissal was affirmed by

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the Court of Appeal and the appellant then appealed to this Court.

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

Per Martland and de Grandpré JJ.: There was no violation of s. 16(1) of the Parole Act in connection with the arrest of the appellant on December 24, 1973, and there was no basis for the application of s. 2(c)(i) of the Canadian Bill of Rights which provides that no law of Canada shall be construed or applied so as to deprive a person who has been arrested or detained of the right to be informed promptly of the reason for his arrest or detention. The requirements of s. 2(c)(i) were met when the appellant was made aware that his apprehension and subsequent detention occurred because his parole had been suspended and, later, that it had been revoked. Nor could the appellant rely on s. 2(e) of the Bill of Rights, which provides that no law of Canada shall be construed or applied so as to deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations. Ex p. McCaud, [1965] 1 C.C.C. 168, decided that the provisions of s. 2(e) do not apply to the question of the revocation of parole under the provisions of the Parole Act and the subsequent amendments to the Act do not in any way alter the principle stated in that case.

Per Judson, Ritchie, Pigeon and Beetz JJ.: The essence of parole is that it is a privilege accorded to certain prisoners in the discretion of the Parole Board and not a right to which all prison inmates are entitled. The Parole Board is a statutory body clothed with an unfettered discretion in the administration of the Parole Act and is not bound to act on a judicial or quasi‑judicial basis. The very nature of the task assigned to the Board makes it necessary that it be clothed with as wide a discretion as possible and that its decision should not be open to question on appeal or otherwise be subject to the same procedures as those which accompany the review of decision of a judicial or quasi-judicial tribunal.

It was within the power of the Board at its discretion to revoke the parole of an inmate after the expiration of his sentence if at the time of such revocation he was in custody pursuant to s. 16, as the appellant was at the time of revocation in this case. The statements contained in the appellant’s affidavits to the effect that he was not given any reason for his arrest were not properly before

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the Court on his application. The jurisdiction of the Court was confined to a consideration of the facts contained on the face of the warrants.

A writ of certiorari would not lie to inquire into and review the administrative acts of the Board, including its act in causing the appellant’s parole to be suspended on December 24th and the manner in which such suspension was effected, and, in any event, having regard to the terms of s. 18 of the Federal Court Act, 1970-71-72 (Can.), c. 1, the Court of Queen’s Bench of Manitoba would have no jurisdiction to issue a writ of certiorari.

Ex p. McCaud, [1965] 1 C.C.C. 168; Howarth v. National Parole Board, [1976] 1 S.C.R. 453; Re Shumiatcher, [1962] S.C.R. 38; Security Export Co. v. Hetherington, [1923] S.C.R. 539; Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228, followed.

Per Laskin C.J. and Dickson J., dissenting: The contention that certiorari in aid of habeas corpus was not open to the appellant in a provincial superior Court because exclusive jurisdiction to invoke certiorari against a federal agency like the National Parole Board was vested in the Federal Court, either in its Trial Division under s. 18 or in the Court of Appeal under s. 28 of the Federal Court Act, cannot be accepted. The argument that the appellant could not bring up the proceedings before the Board by certiorari in aid and could not, without resort to them, go behind the bare terms of the warrant of committal through habeas corpus alone was without merit. Section 2(c)(iii) of the Canadian Bill of Rights affirms the right to habeas corpus, and this includes certiorari in aid to make the remedy an effective one.

There is a marked difference between certiorari, used to quash a conviction or an order by its own strength, and certiorari in aid of habeas corpus to make the latter remedy more effective by requiring production of the record of proceedings for that purpose. In any event, jurisdictional questions may be raised on habeas corpus as going to the authority of the tribunal through which detention of a person has been effected, and defects of natural justice may be within that class of question. Section 23 of the Parole Act, precluding review of any order, warrant or decision made or issued under the Act, is not a bar to a habeas corpus proceeding. Even assuming that it would cover an error of law in the exercise of undoubted powers, it will not insulate a tribunal against

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habeas corpus arising from an excess of jurisdiction, whether for want of natural justice or otherwise.

The appellant, having been arrested illegally because there was no supporting authority at the time as required by s. 16(1) of the Parole Act, was still under illegal arrest on January 1, 1974, when his sentence would have expired. His detention beyond that date was, therefore, also illegal and he was entitled to his discharge on habeas corpus. Section 10(1)(e) of the Act, which authorizes the revocation of parole of a person in custody pursuant to apprehension under s. 16, notwithstanding that his sentence has expired, does not avail the Board in this case when the apprehension under s. 16 was illegal.

There was non-conformity with s. 2(c)(i) and s. 2(e) of the Canadian Bill of Rights. Both violations of the Bill of Rights were matters of departure from rules of natural justice which were of jurisdictional significance, and, accordingly, the appellant was detained under the authority of a tribunal that had acted outside its jurisdiction.

Howarth v. National Parole Board, [1967] 1 S.C.R. 453, distinguished; Ridge v. Baldwin, [1964] A.C. 40; R. v. London Borough of Hillingdon, Ex p. Royco Homes Ltd., [1974] 2 All E.R. 643; Alliance des Professeurs catholiques de Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140, followed.

Per Spence J., dissenting: Concurs on the view that when the appellant was apprehended on December 24, 1973, and no warrant of apprehension was issued until December 27, 1973, he was illegally arrested and no subsequent step which was taken could have any curative effect.

In Ex p. McCaud, [1965] 1 C.C.C. 168, the decision as to whether the sentence should be served within an institution or at liberty on parole was merely administrative in nature. However, the Parole Act was subsequently amended and under the provisions of the present s. 20(1) when the appellant’s parole was revoked on February 8, 1974, that revocation had the effect of causing a forfeiture of the very considerable statutory and earned remission which stood to his credit at the time of the granting of his parole and, therefore, the decision of the Board was one not merely of an administrative

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character but one which deprived him of very important personal rights. There could be no doubt that the provisions of the Canadian Bill of Rights and the tenets of natural justice apply to such a decision.

Ex p. McCaud, supra; Howarth v. National Parole Board, supra, distinguished.

APPEAL from a judgment of the Court of Appeal for Manitoba affirming a judgment of Dewar C.J.Q.B. Appeal dismissed, Laskin C.J. and Spence and Dickson JJ. dissenting.

A.J. Maclver and N.G. Larsen, for the appellant.

A.C. Pennington, P.J. Evraire and B.J. Meronek, for the respondent.

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

THE CHIEF JUSTICE (dissenting)—This appeal, like that in Howarth v. National Parole Board, decided by this Court on October 11, 1974, and as yet unreported[1], concerns the exercise and the manner of exercise by the National Parole Board of its powers of suspension and revocation of parole under the Parole Act, R.S.C. 1970, c. P-2. Howarth came to this Court, by its leave, from a judgment of the Federal Court of Appeal quashing an application under s. 28 of the Federal Court Act, 1970-71-72 (Can.), c. 1, to review an order of the National Parole Board revoking the appellant’s parole. This Court’s majority judgment in Howarth sustained the jurisdictional approach of the Federal Court of Appeal that s. 28 was not available to the appellant because what was in issue was “a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis”. As is evident from the dissenting reasons of Dickson J. in Howarth, the denial, and indeed self‑denial, of jurisdiction carried important substantive determinations and

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consequences, some of which have been raised again in the present case.

The appeal now before this Court, also by its leave, arises, unlike the Howarth case, from a dismissal by the Manitoba Court of Queen’s Bench of an application for habeas corpus with certiorari in aid, a dismissal affirmed by the provincial appellate Court. The uncontested facts on which the application was based tend to shock from their mere narration. Mitchell was sentenced to a total term of imprisonment of three years and two months following his conviction of a number of offences. His term of imprisonment began on November 2, 1970, and was to expire on January 1, 1974. On November 9, 1971, he was released on parole which was suspended on September 6, 1972. The suspension was cancelled on September 20, 1972, and the parole was continued. On December 24, 1973, while engaged in employment which he obtained early in January of that year, Mitchell was arrested without reason or explanation but he learned from a warrant of committal of December 27, 1973, that his parole had been suspended on December 24, 1973. So, unceremoniously as far as the record shows, the appellant, looking forward to his complete release in a week, found himself in custody and facing the prolongation of imprisonment without the full benefit of his period on parole. He remained in custody pursuant to the suspension past what would otherwise have been his release date of January 1, 1974, and was still in custody on February 8, 1974, when the National Parole Board by a warrant of apprehension of that date revoked his parole. Finally, by a magistrate’s or provincial judge’s warrant of committal dated March 5, 1974, which, inter alia, recited the revocation of parole, Mitchell was committed to prison to serve again a substantial portion of the term to which he was originally sentenced.

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It is unnecessary in this appeal to decide exactly how much additional time the appellant must serve by reason of the revocation of parole. The respondent in its factum made a calculation showing that the appellant had been in actual custody for 457 days of his total term of 1,157 days. What he will have lost, if the Board’s position is sustained, is the advantage of the time on parole, being the period from November 9, 1971, to September 6, 1972, and the period from September 20, 1972, to December 24, 1973. I refer to ss. 13(1) and 20(1) of the Parole Act, reading as follows:

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.

20. (1) Where the parole granted to an inmate has been revoked, he shall be recommitted to the place of confinement from which he was allowed to go and remain at large at the time parole was granted to him, to serve the portion of his term of imprisonment that remained unexpired at the time parole was granted to him, including any period of remission, including earned remission, then standing to his credit, less any time spent in custody as a result of a suspension of his parole.

As in the Howarth case, the Board gave no reason for its suspension and for its revocation of parole. Its position there, as here, was that it is not obliged to give any reason, that it has an absolute discretion to determine whether or not to suspend parole or to revoke it, that it is not amenable to court process, whether by review in the Federal Court or through habeas corpus, and that even if, as here, it suspends parole on the eve of the expiry of sentence, it is immune from review albeit revocation of parole takes place beyond the expiry date of January 1, 1974. I should add that counsel for the respondent conceded that the Board might dally for an undetermined period before deciding

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to revoke parole where it was suspended before the expiry date of the sentence. He advanced the suggestion, however, that the Court might hold the Board to a reasonable period. Certainly, the Act places no time limit on the Board, and if its powers are as arbitrary as has been contended by its counsel both in Howarth and here, I see no basis for checking it in this respect if it cannot be checked in other, even more important, respects.

The plain fact is that the Board claims a tyrannical authority that I believe is without precedent among administrative agencies empowered to deal with a person’s liberty. It claims an unfettered power to deal with an inmate, almost as if he were a mere puppet on a string. What standards the statute indicates are, on the Board’s contentions, for it to apply according to its appreciation and without accountability to the Courts. Its word must be taken that it is acting fairly, without it being obliged to give the slightest indication of why it was moved to suspend or revoke parole. All this is said to be expressed or found in the Parole Act, and is said, moreover, to be this Court’s view of the Board’s powers under its decision in the Howarth case.

A prime consideration in this appeal, both for counsel for the appellant and counsel for the Board, was whether habeas corpus with certiorari in aid was or was not available to the appellant, or whether habeas corpus alone was or was not available, and if available, whether it permitted the appellant to go behind the warrant of committal of March 5, 1974, for the purpose of determining whether the Board had exceeded its jurisdiction by acting in violation of the rules of natural justice or in violation of the Canadian Bill of Rights.

As to the availability of habeas corpus through a provincial superior Court I have no doubt. Nothing but express federal legislation directed to such an end would exclude a subject’s right to resort to

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habeas corpus. There is nothing of that sort in the Federal Court Act. Section 17(5) thereof mentions habeas corpus as an exclusive remedy in that Court in relation only to members of the Canadian armed forces serving outside of Canada; the Act is otherwise silent on habeas corpus, which is not mentioned either in s. 18 or in s. 28, the two central provisions on review jurisdiction in respect of federal agencies.

Although not seriously contesting the appellant’s right to resort to habeas corpus in a provincial superior Court, counsel for the respondent Board contended that certiorari in aid was not open because exclusive jurisdiction to invoke certiorari against a federal agency like the National Parole Board was vested in the Federal Court, either in its Trial Division under s. 18 or in the Court of Appeal under s. 28. Counsel would have it that the appellant could not bring up the proceedings before the Board by certiorari in aid and could not, without resort to them, go behind the bare terms of the warrant of committal through habeas corpus alone. This exercise in scholasticism is without merit, especially when counsel conceded that it was at least open to the Court to look at the Board’s warrant of apprehension of February 8, 1974. I do not regard s. 710 or s. 711 of the Criminal Code in their reference to certiorari as having any bearing on the present issue. What to me is more relevant as an affirmation of the right to habeas corpus is s. 2(c)(iii) of the Canadian Bill of Rights, and, if necessary, I would read it as embracing certiorari in aid to make the remedy an effective one and not simply an exhibit in a show-case.

It is quite clear to me that there is a marked difference between certiorari, used to quash a conviction or an order by its own strength, and certiorari in aid of habeas corpus to make the latter remedy more effective by requiring production of the record of proceedings for that purpose. In any event, I have no doubt that jurisdictional questions may be raised on habeas corpus as going

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to the authority of the tribunal through which detention of a person has been effected, and defects of natural justice may be within that class of question. In this connection, s. 23 of the Parole Act, precluding review of any order, warrant or decision made or issued under the Act, is not a bar to a habeas corpus proceeding. Even assuming that it would cover an error of law in the exercise of undoubted powers, it will not insulate a tribunal against habeas corpus arising from an excess of jurisdiction, whether for want of natural justice or otherwise.

This brings me to the kernel of this case which differs from Howarth in the significant fact that there this Court did not deal with the application of the Canadian Bill of Rights. Moreover, Howarth, strictly considered, dealt with the jurisdiction of the Federal Court of Appeal, and not with the substantial questions that would arise if jurisdiction had been taken. None the less, it would be playing with words if I did not recognize that the majority of this Court concluded that the National Parole Board was not a tribunal bound to act on a judicial or quasi-judicial basis. This conclusion was wrapped up in the very question of jurisdiction decided by the Federal Court of Appeal and by this Court.

The Howarth case appears to me to have proceeded as much on a classification of the Board as not being a judicial or quasi-judicial tribunal as on it being involved in an exercise of administrative authority only. I do not think it follows that a denial of judicial or quasi-judicial status to a tribunal relieves it from observance of some at least of the requirements of natural justice. Ridge v. Baldwin[2], and many of the cases cited in it may be invoked in support of this statement. Whether a hearing must be given, whether at least an opportunity must be given in some other way to meet an adverse decision or proposed decision, should not

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be determined merely by a classification of the tribunal so as to carry the result by the mere fact of classification. Even certiorari can no longer be said to be the test of whether a tribunal is of a judicial or quasi-judicial character: see R. v. London Borough of Hillingdon, Ex p. Royco Homes Ltd.[3]

In my opinion, it is the substantive issue that a tribunal is called upon to determine, and its consequences for the affected person, whether in respect of his person, his status or his property, that ought to be considered as relevant to the application of the rules of natural justice. Comments made by Rand J. in this Court in L’Alliance des Professeurs catholiques de Montréal v. Labour Relations Board of Quebec[4], a case where certification of a teachers’ association was revoked without notice or hearing, are apt here. He said this, at p. 161:

The only answer suggested to this is that the Board, being an “administrative body”, can, in effect, act as it pleases. But in this we are too much the prisoners of words. In one sense of administration, in the enactment of subordinate legislation or quasi-legislation, the principle has a limited application; but in the complexity of governmental activities today, a so-called administrative board may be charged not only with administrative and executive but also with judicial functions, and it is these functions to which we must direct our attention. When of a judicial character, they affect the extinguishment or modification of private rights or interests. The rights here, some recognized and others conferred by the statute, depend for their full exercise upon findings by the Board; but they are not created by the Board nor are they enjoyed at the mere will of the Board; and the Association can be deprived of their benefits only by means of a procedure inherent in judicial process.

Moreover, I cannot disabuse my mind that if this Court could find a violation of natural justice in Board of Health for Saltfleet Township v.

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Knapman[5], a case involving municipal condemnation of a dwelling as unfit for human habitation and a direction that the occupants vacate it, there is much more reason to find such a violation in a case like Howarth and, as well, in a case like the present one. There is nothing in the language of the Parole Act to prevent such a conclusion. The discretion reposed in the Board by ss. 6 and 10(1)(e), its powers under s. 16(4), and the provision in s. 11 that it is not required to give an interview in respect of the grant or revocation of parole do not, singly or collectively, militate against a duty to act fairly in the exercise of its powers.

In so far as the Howarth case stands for the proposition that the National Parole Board is in no way fettered by any rules of natural justice in suspending and revoking parole, but may do so without giving reasons and without giving an opportunity to the parolee to contest the order or proposed order of revocation, it stands as a decision made without reference to the effect of the Canadian Bill of Rights. It is my opinion that the Canadian Bill of Rights puts a different complexion on this case so as to make the decision in Howarth inapplicable. In view of what follows, it is unnecessary for me to deal with the appellant’s attempt to distinguish suspension of parole from revocation by contending that even if hearing or notice was not required in case of revocation (as appears to have been decided by Howarth), it was required in the case of suspension to satisfy the provisions of s. 16 authorizing suspension and prescribing review thereof.

There is one, to me crucial, point which must be taken on the facts of this case, entirely apart from the Canadian Bill of Rights. It is clear that the National Parole Board violated s. 16(1) of the Parole Act if it authorized the arrest of the appel-

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lant on December 24, 1973, without the previous issue of a warrant of apprehension. Section 16(1), in its material part, reads as follows:

A member of the Board or any person designated by the Board may, by a warrant in writing signed by him, suspend any parole… and authorize the apprehension of a paroled inmate…

The record does not indicate any warrant of suspension dated December 24, 1973, or earlier, and the appellant’s affidavits, sworn on May 13, 1974, and on May 22, 1974, state that no warrant of suspension was served on him until December 27, 1973, the same day on which a warrant of committal was issued and served, apparently pursuant to s. 16(2) of the Parole Act. Indeed, according to those same affidavits, the prior suspension of parole on September 6, 1972, was not supported at the time by a warrant of suspension, such a document not coming to the appellant’s notice until September 8, 1972. The warrant of committal dated December 27, 1973, recites that Mitchell was apprehended under a warrant given by a person designated by the National Parole Board on December 27, 1973, thus confirming the affidavit evidence of the appellant. The only seeming contradiction of this record is in a statement in para. 2 of the respondent’s factum which recites that parole was suspended on December 24, 1973, by a suspension warrant duly signed by a person designated by the Board pursuant to s. 16(1). Even if one takes this to mean a warrant of even date, this statement is not evidence and is in the face of the record.

In view of the record before this Court, I do not think I would be justified in applying any principle of omnia praesumuntur to the conduct of the National Parole Board. The question then is

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whether the illegal apprehension of Mitchell on December 24, 1973, was curable save by his release and a proper re-arrest if the Board should be moved to that. There was no such release and re-apprehension prior to January 1, 1974; rather the Board proceeded on the basis of the validity of the arrest upon the suspension of the parole effected in December 1973.

In my opinion, the appellant, having been arrested illegally because there was no supporting authority at the time as required by s. 16(1), was still under illegal arrest on January 1, 1974, when his sentence would have expired. His detention beyond that date was, therefore, also illegal and he is entitled to his discharge on habeas corpus. Section 10(1)(e) of the Parole Act, which authorizes the revocation of parole of a person in custody pursuant to apprehension under s. 16, notwithstanding that his sentence has expired, does not avail the Board in this case when the apprehension under s. 16 was illegal.

On a broader base, I see no answer to the application of s. 2(c)(i) of the Canadian Bill of Rights which enjoins against a construction or application of the Parole Act, as a law of Canada, that would “deprive a person who has been arrested or detained of the right to be informed promptly of the reason for his arrest or detention”. Counsel for the respondent urged that there was no violation of s. 2(c)(i) because the appellant was made aware that his parole had been suspended, and this satisfied the obligation to give a reason. This is rather specious because, if the Board has acted properly, any arrest in the circumstances is an arrest upon a suspension, and hence it is the reason for the suspension that must be provided if s. 2(c)(i) is to have more than an empty meaning. I am of the opinion that the same objection must be maintained in respect of the continued detention of the appellant following the revocation of parole. He was given no reason for the suspension of parole, nor a reason for revocation of parole. I would add that enforcement of s. 2(c)(i) would

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have the virtue of providing a basis for judicial review, even if it be a limited one, so as to bring the National Parole Board to that extent into the class of accountable statutory bodies.

Neither in Howarth nor in this case did the Board, through its counsel, or in any record material, indicate that there were reasons that could not easily be disclosed or that, on any ground, disclosure should not be openly made. The Board has continued to insist on its non‑accountability. The Supreme Court of the United States, in its recent decision in Morrissey v. Brewer[6], stated through Chief Justice Burger that there was a violation of due process under the fourteenth amendment in the failure to give a parolee, whose parole had been summarily revoked, at least “a simple factual hearing”. The Court considered that there was more in parole than mere privilege that could be granted or withdrawn at the pleasure of the state. Revocation is, of course, fraught with serious consequences for a parolee apart from the prospect of a prolonged imprisonment. It may mean loss of job, which occurred here, loss of conditional liberty, loss of family and other association. Morrissey v. Brewer supports a parolee’s entitlement to reasons for revocation of parole so that he may offer explanation or submissions in exoneration or mitigation.

In fine, not only was there non-conformity here with s. 2(c)(i) of the Canadian Bill of Rights, there was also non-conformity with s. 2(e) which proscribes construction or application of a law of Canada that would “deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations”. The phrase “rights and

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obligations” has particular significance in the context of a revocation of parole. A hearing in the sense of s. 2(e) need not be a full-fledged adversary proceeding. Between them, s. 2(c)(i) and s. 2(e) call for at least minimum procedural safeguards in parole administration where revocation is involved, despite what may be said about the confidentiality and sensitiveness of the parole system. The Parole Act proclaims “reform and rehabilitation of the inmate” as central in parole, provided there be no undue risk to society in the release of the inmate. This bespeaks some humane consideration for the parolee if it is intended to return him to custody.

Both violations of the Canadian Bill of Rights are matters of departure from rules of natural justice which I regard as of jurisdictional significance, and I would accordingly hold that the appellant is detained under the authority of a tribunal that has acted outside its jurisdiction. His appeal should therefore be allowed and there should be a direction that he be discharged from custody. This Court treated a jurisdictional defect in this way in affirming the quashing of a labour board certification order in Toronto Newspaper Guild v. Globe Printing Co.[7] There does not appear to be any authority to order costs in habeas corpus as there is under s. 713 of the Criminal Code in certiorari applications. This is certainly a case where I would have ordered costs to the appellant throughout if I had the power to do so.

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

MARTLAND J.—I have had the advantage of reading the reasons of the Chief Justice and of my brothers Ritchie and Spence.

I do not find that there was any violation of s. 16(1) of the Parole Act, R.S.C. 1970, c. P-2, in

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connection with the arrest of the appellant. Section 16(1) and (2) provide as follows:

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.

The appellant, pursuant to subs. (2), was brought before a magistrate on December 27, 1973. That warrant specifically recites that the appellant’s grant of parole “was suspended on the 24th day of December 1973 by a person designated by the National Parole Board, pursuant to section 16 of the RSC CP-2 to suspend any parole”. The subsequent reference in the warrant of committal to the 27th day of December 1973 does not refer to the date of issuance of the warrant of suspension but to the date of apprehension. Presumably that date was inserted as being the date on which he was apprehended for removal from The Pas Correctional Institute to be brought before the magistrate. Whether that is the explanation or whether the date of initial apprehension was not correctly stated, it does not affect the validity of the warrant of committal. There is no evidence to contradict the statement in the warrant of committal that parole was suspended on December 24, 1973, by a person designated under the Act. Such suspension could only be made by warrant. No question was raised by the appellant in his originating notice of motion, or in the subsequent notice of motion, both seeking the issuance of a writ of habeas corpus, nor in the Courts below as to the existence on December 24, 1973, of a

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warrant of suspension, and that question was not argued in this Court.

I see no basis for the application of s. 2(c)(i) of the Canadian Bill of Rights, which provides that no law of Canada shall be construed or applied so as to deprive a person who has been arrested or detained of the right to be informed promptly of the reason for his arrest or detention.

The reasons for the arrest and the subsequent detention of the appellant were that his parole had been suspended and later revoked pursuant to the provisions of the Parole Act. The appellant’s complaint is not that he was not made aware of those reasons when arrested and subsequently detained. His complaint is that he was not made aware of the reasons which had prompted the person designated by the Parole Board to suspend his parole and the reasons which later prompted the Parole Board to revoke his parole. The person designated by the Parole Board was entitled to make his decision to suspend parole if he was satisfied that the arrest was neessary or desirable for any one of the reasons stated in s. 16(1). The decision to revoke parole was made by the Board itself. The Board was entitled to make that decision in its absolute discretion, as provided in s. 6 of the Act. What the appellant is contending is that the Bill of Rights requires that the Parole Act should be so construed as to require disclosure of the reasons which led to those decisions. Such application of the Bill of Rights to the Parole Act was considered and rejected by this Court in Ex p. McCaud[8].

In that case and in the later case of Howarth v. National Parole Board[9], it was held that an order of the Parole Board revoking parole was a decision entirely within the discretion of the Parole Board

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and was an administrative matter. In my opinion, in the light of those decisions, the requirements of s. 2(c)(i) of the Canadian Bill of Rights were met when the appellant was made aware that his apprehension and subsequent detention occurred because his parole had been suspended and, later, that it had been revoked.

The appellant also relies upon s. 2(e) of the Bill of Rights, which provides that no law of Canada shall be construed or applied so as to deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations. In the McCaud case, supra, Spence J., whose view was adopted unanimously on appeal, held that the provisions of s. 2(e) do not apply to the question of the revocation of parole under the provisions of the Parole Act.

The appellant had no right to parole. He was granted parole as a matter of discretion by the Parole Board. He had no right to remain on parole. His parole was subject to revocation at the absolute discretion of the Board. As Spence J. put it in the McCaud case:

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.

The fact that revocation of parole is now attended with consequences more severe than those which existed at the time the McCaud case was decided does not, in my opinion, alter in any way the principle stated.

For these reasons I would dismiss the appeal.

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The judgment of Judson, Ritchie, Pigeon and Beetz JJ. was delivered by

RITCHIE J.—This is an appeal brought with leave of this Court from a judgment of the Court of Appeal for Manitoba affirming a judgment of Chief Justice Dewar of the Court of Queen’s Bench delivered by him on the return of a writ of habeas corpus ad subjiciendum issued pursuant to an order granted by Mr. Justice Wilson of the Queen’s Bench Division of Manitoba, whereby the appellant, Mitchell, was brought before the Court for the determination of the validity of his detention pursuant to a warrant of committal issued under s. 18 and s. 10(1)(e) of the Parole Act, R.S.C. 1970, c. P-2, on March 5, 1974, by Provincial Judge Enns, which recited that the said Mitchell’s parole from the Saskatchewan Penitentiary had been revoked under order dated February 8, 1974, and that his term of imprisonment had expired on January 1st of the same year.

The order of Mr. Justice Wilson and the writ issued pursuant thereto are dated May 22, 1974. The writ is addressed to the keeper of the Manitoba Penitentiary at Stony Mountain, Manitoba, and commands him to have the said Mitchell brought before the Court on May 24, 1974, “together with the day and cause and all documents relating to the day and cause of the taking and detaining of the said Fred Mitchell.”

No appeal was taken from the order of Mr. Justice Wilson and the adequacy of the writ issued pursuant thereto has never been questioned at any stage of the proceedings, although it will be seen that it has none of the characteristics of a writ of certiorari issued to bring forward the proceedings before the Board for the purpose of reviewing or quashing any of the orders made by it. Indeed, the order of Mr. Justice Wilson is an order for habeas corpus simpliciter and there is nothing in the material before us to show that any such writ of certiorari was issued.

As will hereafter appear I am, like Chief Justice Dewar, of opinion that the judgments of this Court

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in Ex p. McCaud[10], and Re Howarth v. National Parole Board, as yet unreported[11], establish that the procedures leading up to revocation of parole are administrative in nature and that even if the Court of Queen’s Bench had jurisdiction to grant such a writ, it would not lie to effect them. On the return of the writ before him, Chief Justice Dewar was confined to a consideration of the facts disclosed on the face of the documents relating to the cause of the taking and detaining of the said Fred Mitchell. These documents were:

(1) The warrant of committal issued by Magistrate Perchaluk on December 27, 1973, under the authority of s. 16 of the Parole Act which was forwarded to the Court by Provincial Judge Enns and which disclosed (a) that the appellant’s term of imprisonment was deemed to continue in force until his sentence expired on the 1st of January, 1974; and (b) that his parole was suspended on the 24th of December 1973, pursuant to the said s. 16.

(2) The warrant issued by the Assistant District Representative of the Parole Board on February 8, 1974 under s. 18 of the Parole Act which was marked as Exhibit 1 at the hearing and which disclosed that the appellant’s parole was revoked by order dated the 8th of February, 1974.

(3) The warrant of committal issued by Provincial Judge Enns on March 5, 1974, which was marked Exhibit 2 at the hearing and which commanded the keeper of the Manitoba Penitentiary at Stony Mountain to take the appellant into custody in that prison “there to undergo a term of imprisonment pursuant to s. 20 of the Parole Act.”

It will be seen that these three documents disclose all the information summarized by Chief Justice Dewar at the beginning of his reasons for judgment where he said:

The applicant was under a sentence of imprisonment due to expire on January 1, 1974. On December 24, 1973, while he was on parole he was apprehended pursuant to s. 16 of the Parole Act by reason of suspension of his parole and was remanded in custody for a review of this case. His detention lasted beyond January 1, 1974. On that occasion while his case was referred to

[Page 591]

the parole board for review, s. 16(5) of the Parole Act provides that a person who is in custody pursuant to s. 16 shall be deemed to be serving his sentence.

On February 8, 1974, as appears from the material before me, the National Parole Board revoked the applicant’s parole and on that date a warrant pursuant to s. 18(1) of the Act was issued. That warrant is marked as Exhibit 1 in these proceedings.

That warrant was followed on March 5, 1974, by the warrant of Provincial Judge Enns, again a warrant issued pursuant to the Parole Act. This warrant is the present authority for the applicant’s confinement beyond the date of January 1, 1974. I say that it is the present authority relied upon by the keeper of the prison.

Section 10(1)(e) of the Parole Act gives the National Parole Board the power to revoke a parole after the expiration of a sentence, if an inmate is in custody pursuant to s. 16 of the Act as was the case here.

The relevant sections of the Parole Act to which the Chief Justice refers read as follows:

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.

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.

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(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.

18. (1) If any parole is revoked or forfeited, the Board or any person designated by the Board may, by a warrant in writing, authorize the apprehension of the paroled inmate.

(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 thereupon make out his warrant under his hand and seal for the recommitment of the inmate as provided in this Act.

20. (1) Where the parole granted to an inmate has been revoked, he shall be recommitted to the place of confinement from which he was allowed to go and remain at large at the time parole was granted to him, to serve the portion of his term of imprisonment that remained unexpired at the time parole was granted to him, including any period of remission, including earned remission, then standing to his credit, less any time spent in custody as a result of a suspension of his parole.

In so far as the implementation of the provisions of the Parole Act is called in question in this

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appeal, it should I think be recognized at the outset that the very essence of the parole thereby established is that it is a privilege accorded to certain prisoners in the discretion of the Parole Board and not a right to which all prison inmates are entitled.

This distinction is in my view of fundamental importance in considering the true meaning and effect to be given to the Parole Act and other statutes such as the Penitentiary Act, R.S.C. 1970, c. P-6, which recognize the authority vested in the Parole Board.

The case of Howarth v. National Parole Board, supra, affords ample authority for the proposition that the Parole Board is a statutory body clothed with an unfettered discretion in the administration of the Parole Act and that in so doing it is not bound to act on a judicial or quasi-judicial basis. The very nature of the task entrusted to this Board, involving as it does the assessment of the character and qualities of prisoners and the decision of the very difficult question as to whether or not a particular prisoner is likely to benefit from re-introduction into society on a supervised basis, all make it necessary that such a Board be clothed with as wide a discretion as possible and that its decision should not be open to question on appeal or otherwise be subject to the same procedures as those which accompany the review of decision of a judicial or quasi-judicial tribunal. (See Parole Act, s. 23.)

The conditional nature of parole is well described by Mr. Justice Spence in Ex p. McCaud[12], which was affirmed on appeal to this Court and again adopted in the Howarth case. Spence J. there 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

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Board as an administrative matter and is not in any way a judicial determination.

As Dewar C.J. has said, it was within the power of the Parole Board at its discretion to revoke the parole of an inmate after the expiration of his sentence if at the time of such revocation he was in custody pursuant to s. 16, as the appellant was at the time of revocation in this case. The appellant, however, relies on statements contained in his affidavits of May 13 and 22, 1974, respectively, to the effect that the officers who arrested him on December 24, 1973, failed to give any reason for his arrest, and he argues that such failure tainted the validity of all the warrants subsequently issued at the instance of the Parole Board up to and including the warrant of March 5, 1974. As I have pointed out, Chief Justice Dewar in the hearing before him on the return of the writ of habeas corpus, was confined to a consideration of the facts contained on the face of the warrants then produced, and in my view the statements made in the appellant’s affidavits were not properly before him and it is apparent from his reasons for judgment that he did not take them into consideration. The law in this regard is set out in the judgment of Judson J. in Re Shumiatcher[13], an application for habeas corpus in which, after having reviewed the relevant cases and having observed that the jurisdiction of this Court was concurrent with that of the judges of the superior Courts of the Provinces in matters of habeas corpus, he went on to say:

My jurisdiction is limited to a consideration of the warrant of committal and the other material that I have referred to—the recognizances and the order of Judge Hogarth. I cannot look at evidence, whether a transcript of the evidence at the preliminary hearing or evidence sought to be introduced by way of affidavit identifying a portion of such evidence.

I have indicated that I do not think a writ of certiorari would lie to inquire into and review the administrative acts of the Parole Board, including its act in causing the appellant’s parole to be

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suspended on December 24th and the manner in which such suspension was effected. In this regard the law has not changed since the case of The Security Export Co. v. Hetherington[14], where Sir Lyman Duff had occasion to say at pp. 549 and 550:

The general rule touching the office of the writ of certiorari is usually expressed by saying that it lies to remove acts of inferior courts and judicial acts of bodies possessing statutory jurisdiction, but it does not lie to remove acts which are merely ministerial.

In any event, the Court of Queen’s Bench of Manitoba would, in my opinion, have had no jurisdiction to issue a writ of certiorari having regard to the terms of s. 18 of the Federal Court Act, 1970-71-72 (Can.), c. 1, which provides that the Trial Division of that Court

…has exclusive original jurisdiction

(a) to issue an injunction, writ of certiorari, …or grant declaratory relief, against any federal board, commission of other tribunal…

In the case of Commonwealth of Puerto Rico v. Hernandez[15], at p. 235, Mr. Justice Pigeon, speaking for the majority of this Court said of this section:

The scope of this enactment is limited by reference to the persons or bodies amenable to it, not as in the Criminal Code by reference to the nature of the proceedings before them. To the extent that those matters are criminal, this involves a transfer to the Federal Court of the jurisdiction of the superior courts of criminal jurisdiction as against federal boards, commissions or other tribunals. In civil matters, the effect of the provision is also to take away the jurisdiction of the superior courts of the Provinces…

For these reasons, as well as for those contained in the reasons for judgment of Chief Justice Dewar which were affirmed by the Court of Appeal of Manitoba, I am satisfied that it has not been shown that the warrant of March 5, 1974, was in any way defective or that the appellant was not lawfully detained pursuant to the terms thereof and I would accordingly dismiss this appeal.

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Since writing the above, I have had the advantage of reading the reasons for judgment of Mr. Justice Martland. If I took the view that the contents of the appellant’s affidavits of May 13 and 22, 1974, should have been considered by Chief Justice Dewar and by this Court on the ground that a writ of certiorari in aid of habeas corpus should have been issued so as to bring them before the Court, I would agree with my brother Martland that, having regard to the judgment of this Court in Ex p. McCaud and Howarth v. The National Parole Board, the requirements of s. 2(c)(i) of the Canadian Bill of Rights were met in the present case and those of s. 2(e) of that Bill do not apply to the revocation of parole under the provisions of the Parole Act.

SPENCE J. (dissenting)—I have had the opportunity of reading the reasons which are being delivered by the Chief Justice and I agree that the appeal should be allowed and that there should be a direction that the appellant be discharged from custody.

It would be sufficient to reach this result were I merely to concur with the view that when the appellant was apprehended on December 24, 1973, and, so far as one is able to gather from the record, no warrant of apprehension was issued until December 27, 1973, he was illegally arrested and no subsequent step which was taken could have any curative effect.

In view, however, of my decision in Ex p. McCaud[16], which, as noted on p. 170, was affirmed by this Court, I feel I must make a further statement. Ex p. McCaud was determined in reference to an apprehension on June 6, 1963, and it would appear that the parole had been revoked on that day. At that time, s. 16(1) of the Parole Act provided:

16. (1) Where the parole granted to an inmate has been revoked, he shall be recommitted to the place of confinement to which he was originally committed to serve the sentence in respect of which he was granted

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parole, to serve the portion of his original term of imprisonment that remained unexpired at the time his parole was granted.

The majority of this Court in Marcotte v. Deputy Attorney General for Canada et al., by a judgment delivered on November 27, 1974[17], determined that under that section of the Parole Act a revocation of parole did not entail any forfeiture of either the statutory or earned remission of sentence provided for under the provisions of the Penitentiary Act. Therefore, in Ex p. McCaud, I was simply deciding whether the Board, in exercising its jurisdiction under the provisions of s. 8(d) of the Parole Act as it then read, which empowered it to revoke parole in its discretion, was exercising a jurisdiction altogether administrative in nature. As I there pointed out, s. 11(1) of the Parole Act then provided that the sentence of the paroled inmate should be deemed to continue in force until the expiration thereof according to law. It was under these circumstances that I could find that that decision as to whether the sentence should be served within an institution or at liberty on parole was merely administrative in nature.

The Parole Act was amended by 1968-69 (Can.), c. 38, s. 102, and s. 16(1) was enacted in the form presently found in R.S.C. 1970, c. P-2, s. 20(1), and reads as follows:

20. (1) Where the parole granted to an inmate has been revoked, he shall be recommitted to the place of confinement from which he was allowed to go and remain at large at the time parole was granted to him, to serve the portion of his term of imprisonment that remained unexpired at the time parole was granted to him, including any period of remission, including earned remission, then standing to his credit, less any time spent in custody as a result of a suspension of his parole.

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Note the important addition, “including any period of remission, including earned remission, then standing to his credit, less any time spent in custody as a result of a suspension of his parole”.

It is, therefore, apparent that when Mitchell’s parole was revoked on February 8, 1974, that revocation had the effect of causing a forfeiture of the very considerable statutory and earned remission which stood to his credit at the time of the granting of his parole and that, therefore, the decision of the Board was one not merely of an administrative character but one which deprived him of very important personal rights. Surely there can be no doubt as the Chief Justice of this Court has pointed out that the provisions of the Canadian Bill of Rights and the tenets of natural justice apply to such a decision. I realize that Howarth v. National Parole Board, decided by this Court on October 11, 1974, also dealt with a revocation of parole occurring after the amendment of the provisions of the Parole Act. I distinguish the decision of this Court for the reasons which have been set out by the Chief Justice in his reasons in the present appeal.

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

Solicitor for the appellant: A.J. Maclver, Winnipeg.

Solicitor for the respondent: D.S. Thorson, Ottawa.