Judgments

[1993] 2 F.C. 327

T-21-93

John Frankie (Applicant)

v.

The Commissioner of Corrections (Respondent)

Indexed as: Frankie v. Canada (Commissioner of Corrections) (T.D.)

Trial Division, Reed J.—Ottawa, February 16 and 25, 1993.

Parole — Inmate recommitted to custody and parole suspended, but not yet revoked on date Corrections and Conditional Release Act coming into force — Statutory release date governed by s. 138(2) — Determined by calculating forward from date inmate first recommitted to custody i.e. parole suspended — Arriving after two thirds of remaining sentence as originally imposed spent in custody.

This was an application for a declaration that the respondent credit to the unexpired portion of the applicant’s sentence the earned remission standing to his credit on November 1, 1992 in calculating his statutory release date. The applicant’s parole was suspended and he was returned to custody on April 28, 1992. At the time of his release on parole and the suspension thereof, he was subject to the Penitentiary Act and the Parole Act, both of which were repealed by the Corrections and Conditional Release Act, which was proclaimed in force on November 1, 1992. The applicant’s parole was revoked on November 13, 1992. His situation was governed by the Corrections and Conditional Release Act, section 138. Subsection 138(1) provides that where parole is revoked, the offender shall be recommitted to custody and “shall serve the portion of the term of imprisonment that remained unexpired on the day on which the parole or statutory release was … revoked”. Subsection 138(2) provides that “an offender whose parole has been revoked is not eligible for statutory release until after serving two thirds of the unexpired portion of the sentence after being recommitted to custody under subsection 138(1)”. Subsection 224(1) provides that “any parole granted … under the former Act shall, on and after the commencement day, be dealt with as if it had been granted or authorized under Part II”. In Marcotte v. Deputy Attorney General of Canada et al., [1976] 1 S.C.R. 108, the Supreme Court held that the phrase “the portion of his original term of imprisonment that remained unexpired at the time his parole was granted” in Parole Act, subsection 16(1) was calculated by excluding therefrom statutory remission credited to the inmate at the time his parole had been granted.

Held, declaration granted to an effect other than that sought.

The Marcotte interpretation of the phrase “the portion of [the] original term of imprisonment that remained unexpired” given by the Supreme Court in Marcotte should not be adopted for the purposes of the Corrections and Conditional Release Act. Because the Penitentiary Act expressly provided for forfeiture of statutory remission in certain circumstances, the Court was not willing to find that forfeiture could also occur in other circumstances, e.g. on revocation of parole. The new system provides a firm statutory release date for an offender once two thirds of a sentence has been served. While not subject to being “earned”, the statutory release date can be deferred, cancelled or revoked. In the Corrections and Conditional Release Act, “statutory release” means release from imprisonment subject to supervision before the expiration of an offender’s sentence. Subsections 99(2), 127(6), 128(1) envisage that, when either parole or statutory release is cancelled, an inmate will be returned to custody to serve the rest of the sentence of imprisonment which was initially imposed by the Court subject to the establishment of a new statutory release date. This new statutory release date is determined by calculating forward from the time the inmate was first recommitted to custody (i.e. had his parole or statutory release suspended) and arrives after two thirds of the remaining sentence has been spent in custody.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 99, 127, 128, 138, 213, 214, 224.

Parole Act, S.C. 1958, c. 38.

Parole Act, R.S.C., 1985, c. P-2, s. 25 (as am. by R.S.C., 1985 (2nd Supp.), c. 34, s. 7).

Penitentiary Act, R.S.C., 1985, c. P-5, s. 25 (as am. by R.S.C., 1985 (2nd Supp.), c. 34, s. 10).

Penitentiary Act, S.C. 1960-61, c. 53, s. 24.

CASES JUDICIALLY CONSIDERED

DISTINGUISHED:

Marcotte v. Deputy Attorney General of Canada et al., [1976] 1 S.C.R. 108; (1974), 51 D.L.R. (3d) 259; 19 C.C.C. (2d) 257; 3 N.R. 613.

APPLICATION for a declaration that the respondent credit to the unexpired portion of the applicant’s sentence the earned remission standing to his credit on November 1, 1992 in calculating his statutory release date. Declaration granted to an effect other than that sought.

COUNSEL:

Elizabeth A. Thomas for applicant.

Arnold S. Fradkin for respondent.

SOLICITORS:

Elizabeth A. Thomas, Kingston, Ontario for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Reed J.: The issue in this case is the proper interpretation of section 138 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, as it applies to an inmate who was in custody and had had his parole suspended on the date that that Act came into force but whose parole was not revoked until some time after that date.

The applicant was released on full parole on May 9, 1991. His parole was suspended and he was returned to custody on April 28, 1992. At the time of his release on parole and the suspension thereof, he was governed by the Penitentiary Act, R.S.C., 1985, c. P-5 and the Parole Act, R.S.C., 1985, c. P-2. The Parole Act and the Penitentiary Act were repealed by the Corrections and Conditional Release Act, S.C. 1992, c. 20, sections 213 and 214. The Corrections and Conditional Release Act was proclaimed in force on November 1, 1992. The applicant’s parole was revoked on November 13, 1992.

Under section 25 [as am. by R.S.C., 1985 (2nd Supp.), c. 34, s. 10] of the Penitentiary Act, as it existed prior to November 1, 1992, inmates earned fifteen days a month remission if their behaviour in the institution was “industrious”. This meant that approximately one third of an inmate’s sentence could be the object of earned remission. Under section 25 [as am. idem., s. 7] of the Parole Act, R.S.C., 1985, c. P-2, as it existed immediately prior to November 1, 1992, an inmate who had his parole revoked forfeited any earned remission he had at that date. The Parole Board could however recredit the inmate with either part or all of this:

25. …

(2) Subject to subsection (3) and section 26.1 of the Penitentiary Act, where any parole is revoked, the paroled inmate shall, whether the inmate was sentenced or granted parole before or after the coming into force of this subsection, serve the portion of the term of imprisonment that remained unexpired at the time parole was granted, including any statutory and earned remission, less

(a) any time spent on parole after October 14, 1977;

(b) any time during which the inmate’s parole was suspended and the inmate was in custody;

(c) any remission earned after October 14, 1977 and applicable to a period during which the inmate’s parole was suspended and the inmate was in custody; and

(d) any earned remission that stood to the credit of the inmate on October 15, 1977.

(3) Subject to the regulations and subsection 25(7) and section 26.1 of the Penitentiary Act, the Board or a provincial parole board may recredit the whole or any part of the statutory and earned remission that

(a) stood to the credit of an inmate at the time parole was granted; and

(b) in the case of a revocation of day parole, the inmate earned while on that day parole. [Underlining added.]

It is clear that if this applicant’s parole had been revoked prior to November 1, 1992, his earned remission would have been automatically revoked unless the Board recredited him with some or all of it.

Prior to October 15, 1977, subsection 16(1) (later subsection 25(2) [R.S.C., 1985, c. P-2]) of the Parole Act [S.C. 1958, c. 38] 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 parole, to serve the portion of his original term of imprisonment that remained unexpired at the time his parole was granted. [Underlining added.][1]

In Marcotte v. Deputy Attorney General of Canada et al., [1976] 1 S.C.R. 108, the Supreme Court held that the phrase “the portion of his original term of imprisonment that remained unexpired at the time his parole was granted”, in subsection 16(1), was to be calculated by excluding therefrom statutory remission standing to the inmate’s credit at the time his parole had been granted. Counsel for the applicant argues that a similar interpretation should be given to subsection 127(5) and section 138 of the Corrections and Conditional Release Act.

The Corrections and Conditional Release Act replaced the system in which an inmate earned remission and then lost it, for example, on commission of a disciplinary offence or when one’s parole was revoked. The new system provides for a firm statutory release date for an offender. This occurs once two thirds of a sentence has been served. Subsection 127(3) of the Act states with respect to persons sentenced for offences committed after the Act comes into force:

127. …

(3) … the statutory release date of an offender … is the day on which the offender completes two thirds of the sentence.

Subsection 127(2) states that the statutory release date for an inmate sentenced with respect to an offence committed before the Act comes into force is calculated by adding together:

127. (2)

…

(a) any remission, statutory or earned, standing to the offender’s credit on that day [November 1, 1992]; and

(b) the maximum remission that could have been earned on the balance of the sentence pursuant to the Penitentiary Act or the Prisons and Reformatories Acts, as those Acts read immediately before that day.

While the statutory release date is not subject to being “earned” as was previously the case under the earned remission system, the statutory release date can be deferred, if the Parole Board determines that it is in the public interest to do so, or cancelled or revoked for a breach of the conditions of the release.

In the case of an inmate who was on parole on the day the Corrections and Conditional Release Act came into force but who subsequently had his or her parole revoked, subsection 127(5) of that Act provides:

127. …

(5) … the statutory release date of an offender who is on parole or who is subject to mandatory supervision under the Parole Act on the day on which this section comes into force, and whose parole or release subject to mandatory supervision is revoked on or after that day, is the day on which the offender completes two thirds of the unexpired portion of the sentence after being recommitted to custody … [Underlining added.]

The Act does not expressly deal with a person who was under suspension of parole at the time the Act came into force although section 138 addresses generally the situation of individuals who have their parole or statutory release revoked under that Act:

138. (1) Where the parole or statutory release of an offender is terminated or revoked, the offender shall be recommitted to custody and shall serve the portion of the term of imprisonment that remained unexpired on the day on which the parole or statutory release was terminated or revoked.

(2) … an offender whose parole or statutory release has been revoked is not eligible for statutory release until after serving two thirds of the unexpired portion of the sentence after being recommitted to custody under subsection (1). [Underlining added.]

Subsection 224(1) of the Corrections and Conditional Release Act states:

224. (1) Any parole granted or temporary absence authorized under the former Act shall, on and after the commencement day, be dealt with as if it had been granted or authorized under Part II of this Act.

Thus, the present applicant’s situation is governed by section 138 of the Corrections and Conditional Release Act.

As has been noted, counsel for the applicant argues that the Marcotte decision makes it clear that when sentence remission is granted by statute, that remission cannot be taken away from an inmate without express statutory direction to this effect and that, in addition, the Supreme Court in the Marcotte decision interpreted the phrase “the portion of [the] original term of imprisonment that remained unexpired” as excluding therefrom any time which had been credited as statutory remission. (At the time in question, only statutory remission was in issue because earned remission was not subject to forfeiture, see Penitentiary Act, S.C. 1960-61, c. 53, s. 24.) It is argued that the decision in Marcotte leads to the conclusion that the time described by the phrase “the portion of the term of imprisonment that remained unexpired on the day on which the parole … was … revoked” in subsection 127(5) and section 138 of the Corrections and Conditional Release Act must be calculated by excluding therefrom any earned remission standing to the inmate’s credit on the day parole is revoked. As I understand counsel’s argument, this pertains whether an inmate is in the situation of the present applicant, in that his parole was suspended before but revoked after the Act came into force, or is an inmate who has his parole granted, suspended and revoked all after the coming into force of the Act.

I recognize that at first sight, the phrasing of subsection 16(1) of the old Parole Act is similar to the phrasing of section 138 of the new Corrections and Conditional Release Act. I am not, however, willing to accept that the interpretation of the phrase, in the context of the old Parole Act is one which should be adopted for the purposes of the Corrections and Conditional Release Act.

As I read the Marcotte decision, the Supreme Court’s reasoning in that case depended heavily on the fact that provisions of the Penitentiary Act expressly provided for forfeiture of statutory remission on commission of a disciplinary offence or when the inmate was convicted of the offence of escape or attempting to escape. In the light of provisions which expressly provided for forfeiture of statutory remission in certain circumstances, the Court was not willing to find that forfeiture could also occur in other circumstances, e.g., on revocation of parole.

With respect to the forfeiture of statutory remission on revocation of parole, Mr. Justice Dickson [as he then was] wrote in the Marcotte decision, at page 112:

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.

At pages 114-115:

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, 10 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 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).

In the Corrections and Conditional Release Act however, I note that “statutory release” means release from imprisonment subject to supervision before the expiration of an offender’s sentence“ [underlining added] (subsection 99(1)).

Subsection 99(2) provides:

99. …

(2) For the purposes of this Part, a reference to the expiration according to law of the sentence of an offender shall be read as a reference to the day on which the sentence expires, without taking into account

(a) any period during which the offender could be entitled to statutory release; or

(b) any remission that stands to the credit of the offender on the coming into force of this section.

Subsection 127(6) provides that:

127. …

(6) An offender who is entitled to be released on statutory release may choose to remain in custody for all or any portion of the sentence the offender is serving. [Underlining added.]

Subsection 128(1) provides:

128. (1) An offender who is released on parole … continues, while entitled to be at large, to serve the sentence of imprisonment until its expiration according to law. [Underlining added.]

Thus, it seems clear to me from reading these provisions, and other sections of the Act which provide, for example, for the granting of parole and the cancellation of statutory release, that what is envisaged, when either parole or statutory release is cancelled, is that an inmate will be returned to custody to serve the rest of the sentence of imprisonment which was initially imposed by the Court subject to the establishment of a new statutory release date. This new statutory release date is determined by calculating forward from the time the inmate was first recommitted to custody (i.e., had his parole or statutory release suspended). The new date arrives after two thirds of the remaining sentence has been spent in custody.

The interpretation of section 138 urged by counsel for the applicant, does not fit with the scheme of the Act as a whole. For example, once an inmate had reached his first statutory release date, having served two thirds of his sentence, he could never be taken back into custody as a result of the cancellation of either his statutory release or parole because “the term of imprisonment that remained unexpired”, would have to be calculated by guaranteeing to the inmate release on the date calculated under subsection 127(3). This would not make sense in terms of the overall scheme of the Act.

Thus, I am not persuaded that the applicant is guaranteed a statutory release date, on revocation of his parole, calculated by crediting him with earned remission which had been accumulated prior to the revocation of his parole and, then, once that is subtracted from his sentence, requiring him to serve two thirds of the remaining time in custody. In my view, his statutory release date is governed by subsection 138(2) and is determined by calculating two thirds of time remaining, that is, starting from the date he was taken into custody and his parole suspended (April 28, 1992) and ending with the date of his sentence of imprisonment as originally imposed by the Court. Two thirds of that period of time must be spent in custody before the inmate can again be released pursuant to the statutory release provisions.

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