Marcotte v. Deputy Attorney General (Canada) et al., [1976] 1 SCR 108

Supreme Court of Canada

Marcotte v. Deputy Attorney General (Canada) et al., [1976] 1 S.C.R. 108

Date: 1974-11-27

Robert Stewart Pierre Marcotte (Plaintiff) Appellant;

and

The Deputy Attorney General for Canada

and

The Warden of Joyceville Federal Institution (Defendants) Respondents.

1974: November 13; 1974: November 27.

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Statutes—Interpretation—Ambiguity—Legislative history—Forfeiture of remission on revocation of parole—Penitentiary Act, 1960-61 (Can.), ss. 22, 25—Parole Act, 1958 (Can), ss. 2, 16, 18.

The appellant was serving sentences totalling 15 years imposed on February 28, 1962. He was released on parole but the parole was suspended 45 days later and later revoked. There were 582 days of statutory remission to his credit at the time of his release but upon revocation this accumulated statutory remission was taken by the authorities to have been forfeited. An application for habeas corpus with certiorari in aid was granted but later set aside by the Court of Appeal.

Held (Martland, Judson, Ritchie and de Grandpré JJ. dissenting): The appeal should be allowed.

Per Laskin C.J. and Spence, Dickson and Beetz JJ.: Whether a paroled inmate whose parole is revoked thereby loses his entitlement to statutory remission standing to his credit at the time of his release on parole depends on the proper construction of the Penitentiary Act, as of the date of parole revocation. Section 22 of the Act contains an entire code governing grant and forfeiture of statutory remission. The credit of statutory remission is not a deferred credit but a real and immediate entitlement. Subsections (3) and (4) of s. 22 alone provide for forfeiture of such remission, but then only for conviction in a disciplinary court for a disciplinary offence or conviction in a criminal court for escape or attempted escape. Even in these cases the extent of the forfeiture is subject to certain limitations and controls. Thus a recommitted parolee is required to serve the term that remained unexpired at the time of parole but is

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entitled to the statutory remission standing to his credit unless forfeited in whole or in part pursuant to s. 22(3) or (4) of the Penitentiary Act. Section 25 of the Penitentiary Act does not apply to s. 16(1) of the Parole Act. Its purpose is only to define the term of imprisonment while the parolee is at large. The legislative history supports this conclusion. There was a provision for forfeiture of remission which was not carried forward when the Ticket of Leave Act was replaced by the Parole Act.

Per Pigeon J.: Under the law in force when appellant’s parole was revoked the revocation did not involve forfeiture of statutory remission standing to his credit.

Per Martland, Judson, Ritchie and de Grandpré JJ., dissenting: For the reasons given by Martin J.A. in the Court of Appeal, with which Gale C.J.O. agreed, the appeal should be dismissed.

[Re Morin (1968), 66 W.W.R. 566; R. v. Howden [1974] 2 W.W.R. 461; Ex parte Hilson (1973), 12 C.C.C. (2d) 343; Re Abbott (1970), 1 C.C.C. (2d) 147; Ex parte Kolot (1973), 13 C.C.C. (2d) 417; Ex parte Rae (1973), 14 C.C.C. (2d) 5, referred to.]

APPEAL from a judgment of the Court of Appeal for Ontario[1] allowing an appeal pursuant to s. 719 of the Criminal Code from a judgment of Henderson J.[2] releasing the appellant on a habeas corpus application. Appeal allowed, Martland, Judson, Ritchie and de Grandpré JJ. dissenting.

R.R. Price, and A.D. Gold, for the appellant.

A.C. Pennington, and P. Evraine, for the respondents.

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The judgment of The Chief Justice and Spence, Dickson and Beetz JJ. was delivered by

DICKSON J.—In my view this appeal should succeed. The issue is whether a paroled inmate whose parole was revoked on August 29, 1968, thereby lost his entitlement to statutory remission standing to his credit at the time of his release on parole. The resolution of the issue depends on the proper construction, as of that date (the legislation having since been amended), of s. 22(1), (3), (4), s. 24 and s. 25 of the Penitentiary Act, 1960-61 (Can.), c. 53, reading:

22. (1) Every person who is sentenced or committed to penitentiary for a fixed term shall, upon being received into a penitentiary, be credited with statutory remission amounting to one-quarter of the period for which he has been sentenced or committed as time off subject to good conduct.

. . .

(3) Every inmate who, having been credited with remission pursuant to subsection (1) or (2), is convicted in disciplinary court of any disciplinary offence is liable to forfeit, in whole or in part, the statutory remission that remains to his credit, but no such forfeiture of more than thirty days shall be valid without the concurrence of the Commissioner, nor more than ninety days without the concurrence of the Minister.

(4) Every inmate who is convicted by a criminal court of the offence of escape or attempt to escape forthwith forfeits three-quarters of the statutory remission standing to his credit at the time that offence was committed.

24. Every inmate may, in accordance with the regulations, be credited with three days’ remission of his sentence in respect of each calendar month during which he has applied himself industriously to his work, and any remission so earned is not subject to forfeiture for any reason.

25. Where, under the Parole Act, authority is granted to an inmate to be at large during his term of imprisonment, the term of imprisonment, for all purposes of that Act, includes any period of statutory remission standing to his credit when he is released but does not include any period of earned remission standing to his credit at that time.

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and of s. 16(1) of the Parole Act, 1958 (Can.), c. 38, reading:

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

This Court has had the benefit, if I may say so, of two excellent judgments delivered in the Court of Appeal for Ontario, one by Mr. Justice Martin with whom Chief Justice Gale agreed, the other by Mr. Justice Estey. Mr. Justice Martin concluded that the appellant, upon revocation of his parole, was not entitled to the benefit of statutory remission standing to his credit at the time of his release on parole. Mr. Justice Estey, for reasons which I find persuasive, reached the opposite conclusion.

Section 22 of the Penitentiary Act contains, in my opinion, an entire code governing the grant and the forfeiture of statutory remission. Every person sentenced to penitentiary for a fixed term is entitled as of right to be credited with statutory remission, “upon being received into a penitentiary”. With great respect for those holding the contrary view, I cannot find in the language of s. 22 any substantial support for the contention that the statutory remission assured by s. 22(1) is a deferred credit which does not accrue to the inmate until such time as statutory remission, earned remission and time served equal the length of the sentence. It seems to me from s. 22(3) and (4) that the credit of statutory remission upon entering penitentiary is a real and immediate entitlement and not an elusive expectation, for one cannot forfeit what one does not have. It is true that the time off for which s. 22(1) provides is subject to good conduct but the conduct giving rise to forfeiture of remission credited, indeed the only conduct which the Penitentiary Act recognizes expressly as giving rise to forfeiture, is that spelled out in s. 22(3), conviction in a disciplinary court for a disciplinary offence, and in s. 22(4), escape or attempted escape. Parenthetically it may be observed that no forfeiture under s. 22(3) of more

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than thirty days is valid without the concurrence of the Commissioner of Penitentiaries, nor more than ninety days without the concurrence of the Minister of Justice, and that an escape or attempt to escape results in forfeiture of three-quarters of the statutory remission standing to the credit of the inmate; yet if the contentions of the respondent are correct, a person whose parole has been revoked loses the entire statutory remission to his credit at the time of revocation. Parole may be suspended whenever a member of the Board or any person designated by the Board 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, and may be revoked in the untrammelled discretion of the Board.

Turning to s. 16 of the Parole Act, where parole has been revoked the inmate is recommitted to serve the portion of his original term of imprisonment that remained unexpired at the time his parole was granted. If, as I conceive it, the statutory remission is truly credited upon the person being received into a penitentiary, then, unless forfeited in whole or in part pursuant to s. 22(3) or (4) of the Penitentiary Act, that credit must be taken into account in computing the unexpired portion of the original term of imprisonment.

The difficulty to which the legislation has given rise would seem to originate in s. 25 of the Penitentiary Act and more particularly in the words “for all purposes of that Act”, i.e., the Parole Act. The argument briefly is that for all purposes of the Parole Act the term of imprisonment of an inmate released on parole includes any period of statutory remission standing to his credit when he is released. In my opinion s. 25 of the Penitentiary

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Act does not apply to s. 16(1) of the Parole Act. The Parole Act empowers the Board to review the cases of inmates, grant parole where the Board considers that reform and rehabilitation will be aided by the grant of parole, and revoke parole where necessary. The length of the remaining term on the recommitment is a consequence of the revocation; it does not appear to be a purpose of the enactment. It should be noted also that the only section of the Parole Act purporting to touch upon sentence is s. 18 (whipping) which is significantly found under a different heading “Additional Jurisdiction”. It is not one of the purposes of the Parole Act to effect changes in sentences. Mr. Justice Martin finds that revocation generally is the partial purpose of the Act and that the additional loss of statutory remission is further incentive to abide by the parole conditions. But as intimated by Mr. Justice Estey, the loss of liberty and the necessity of re-serving parole time are sufficient incentives to the parolee without the added burden of loss of statutory remission. Mr. Justice Estey also draws attention to the disincentive to parole which would be created if the potential parolee were faced with the prospect of losing all statutory remission referable to time served in the event his parole is revoked.

In determining whether s. 25 of the Penitentiary Act affects s. 16(1) of the Parole Act, the words “where…authority is granted…to be at large…” must be given effect. Section 25 is confined to the purposes of the parole legislation while the parolee is at large. This is understandable. The purpose is to ensure an extended period of supervision while at large and also, when the authorities

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contemplate revocation of a parole, they must know the date on which the sentence expires (vide ss. 11 and 12 of the Parole Act). The relevant sections speak in terms of “inmate”, defined by s. 2 as a person under “sentence of imprisonment”. Section 25 of the Penitentiary Act supplies the required definition of this “term of imprisonment”. I conclude that s. 16(1) is quite independent of and unaffected by s. 25.

The legislative history supports the foregoing conclusion. If one examines the Penitentiary Act R.S.C. 1952, c. 206, s. 69, it will be seen that provision was made there for a convict earning remission not exceeding six days for every month of good conduct and in addition, when the convict had at his credit seventy-two days of remission, he might be allowed, for every subsequent month during which his conduct and industry were satisfactory, ten days’ remission per month. Subsection (4) of s. 69 then provided:

(4) Every convict who escapes, attempts to escape, breaks prison, attempts to break prison, breaks out of his cell, or makes any breach therein with intent to escape, or assaults any officer or servant of the penitentiary, or being the holder of a licence under the Ticket of Leave Act, forfeits such licence, shall forfeit the whole of the remission which he has earned. (Emphasis added)

A licence under the Ticket of Leave Act was the equivalent of parole, 1958 (Can.), c. 38, s. 24. The significance of the earlier legislation, in my opinion, lies in the fact that under that legislation there was express provision for forfeiture of remission on forfeiture of a licence under the Ticket of Leave Act, but when the legislation was changed and the present ss. 22 to 25 of the Penitentiary Act were enacted, the provision was not carried forward into the new legislation. It is, therefore, I think, fair to conclude that Parliament did not intend any forfeiture by ss. 22 to 25 of the new legislation and that nothing in these sections affects the plain and

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ordinary meaning of the words used in s. 16(1) of the Parole Act (the earlier counterpart of which was s. 9(1) of the Ticket of Leave Act).

Even if I were to conclude that the relevant statutory provisions were ambiguous and equivocal—a conclusion one could reach without difficulty on reading Re Morin[3], R. v. Howden[4], Ex Parte Hilson[5], Re Abbott[6], and then reading Ex Parte Kolot[7] and Ex Parte Rae[8]—I would have to find for the appellant in this case. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication.

I would allow the appeal, set aside the judgment of the Court of Appeal and reinstate the judgment of Henderson J.

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

MARTLAND J. (dissenting)—I agree with the reasons given by Martin J.A. in the Court of Appeal, with which Gale C.J.O. agreed. I would dismiss this appeal.

PIGEON J.—I agree with Dickson J.’s conclusion on his view that under the law in force when appellant’s parole was revoked this did not involve

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forfeiture of statutory remission standing to his credit.

Appeal allowed, MARTLAND, JUDSON, RITCHIE and DE GRANDPRE JJ. dissenting.

Solicitors for the appellant: Pomerant, Pomerant & Greenspan, Toronto and R.R. Price, Kingston.

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