T-889-76
Charles Lebar (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Gibson J.—Toronto, November 16;
Ottawa, December 9, 1976.
Imprisonment — Action for declaratory judgment that
plaintiff's sentence expired so as to make statutory and earned
remission thereof unalterable — Whether two sentences of
plaintiff merged by combined effect of ss. 14 of Parole Act and
22 of Penitentiary Act — Whether ss. 14 of Parole Act and 22
of Penitentiary Act retrospective — Parole Act, R.S.C. 1970, c.
P-2, ss. 14 and 21 — Penitentiary Act, R.S.C. 1970, c. P-6, s.
22 — Criminal Code, R.S.C. 1970, c. C-34, s. 137.
Plaintiff claims that statutory remission credited to him
could not be taken away from him in 1973 when a sentence for
escape was imposed on him because his previous sentences had
expired. Plaintiff based his submission on the argument that
section 14 of the Parole Act is not a substantive provision
merging two or more sentences, that it is ambiguous when
applied to his case and that it has an unintended retrospective
effect.
Held, the action is dismissed. Whether or not his two previ
ous sentences were merged is irrelevant because the plaintiff's
position as to forfeiture of remission must be determined by the
state of the law in 1973 when the forfeiture occurred and at
that time the fourteen-year sentence imposed on plaintiff in
1962 could not expire until 1976.
Marcotte v. Deputy Attorney General of Canada [ 1976] 1
S.C.R. 108 and Howley v. Deputy Attorney General of
Canada (1976) 30 C.C.C. (2d) 106, applied.
ACTION.
COUNSEL:
D. P. Cole for plaintiff.
J. P. Malette for defendant.
SOLICITORS:
David Cole, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
GIBSON J.: In this action, the plaintiff, an
inmate of Millhaven Penitentiary, seeks a declara-
tory judgment that he has served all his sentence
and should be released on the grounds that the
statutory remission credited to him on the four-
teen-year sentence imposed on him in 1962 could
not be taken away from him in 1973 when a
sentence for escape was imposed on him, because
his said fourteen-year sentence had expired.
The following facts have been agreed to by the
parties:
The Plaintiff is an inmate of Millhaven Institution, a peni
tentiary operated by the Canadian Penitentiary Service in the
Township of Ernestown, in the County of Lennox and Adding-
ton, in the Province of Ontario.
On the 30th day of April, 1962, the Plaintiff was sentenced
for a term of ten years for robbery. On the 3rd day of July,
1962, the Plaintiff was sentenced for a term of 14 years for
robbery. This last term was concurrent with the first term of
ten years.
On the 27th day of May, 1968, the Plaintiff was released on
parole.
On the 23rd day of December, 1968, the Plaintiff was
sentenced for attempted robbery to a term of 5 years, consecu
tive to any existing sentence.
The Plaintiff escaped on the 21st day of April, 1973, and was
recaptured on the same day. As a result of his escape, he was
sentenced to a term of 8 months consecutive.
The new single term to be served by the inmate as of
December 23, 1968 totals 4,715 days calculated as follows:
Parole Forfeiture, Balance of original term 2,763 days
Less time served under suspension: August
28 to December 22, 1968 117
Remanet 2,646
Plus 5 years consecutive
(Paragraph 4 herein) 1,826
4,472
Escaped and recaptured April 21, 1973:
Nil days at large
Sentence for escape:
8 months from July 10, 1973 243
New single term from December 23, 1968 4,715 days
Statutory Remission calculation pursuant to the decision in
Marcotte v. Deputy Attorney General of Canada [ 1976] 1
S.C.R. 108:
Original Statutory Remission applied to
remanet of 2,646 days: 1,265 days
Statutory Remission on forfeiting convic
tion of five years: 457
Total Statutory Remission at time of escape 1,722
As a result of the escape, the Plaintiff has
forfeited 3 / 4 of his Statutory Remission 1,291
TOTAL 431
Statutory Remission for escape sentence 61
Total Statutory Remission for a single term
of 4,715 is 492 days
As calculated in paragraph 6, the single term as of December
23, 1968 was 4,715 days. As a result of the Marcotte ruling, the
Plaintiff is credited with a Statutory Remission of 492 days,
leaving a total of 4,223 to serve.
The maximum earned remission possible is 381 days, but
from this total is deducted 24 days that the Plaintiff has failed
to earn, leaving the total number of days to be served as being
3,866.
As presently calculated, the mandatory supervision release
due date for the Plaintiff is July 24, 1979, with the warrant
expiring on the 19th day of November, 1981. This date is a
projected date and is not immutable.
At issue in this case is (1) whether or not the
1962 and 1968 sentences of the plaintiff merged,
and (2) when the 1962 fourteen-year sentence of
the plaintiff expired.
Section 14(1) and section 21(1) of the Parole
Act as worded in R.S.C. 1970 (1st Supp.), c. 31,
reads as follows:
14. (1) Where, either before, on or after the 25th day of
March 1970,
(a) a person is sentenced to two or more terms of imprison
ment, or
(b) an inmate who is in confinement is sentenced to an
additional term or terms of imprisonment,
the terms of imprisonment to which he has been sentenced,
including in a case described in paragraph (b) any term or
terms that resulted in his being in confinement, shall, for all
purposes of this Act, the Penitentiary Act and the Prisons and
Reformatories Act, be deemed to constitute one sentence con
sisting of a term of imprisonment commencing on the earliest
day on which any of those sentences of imprisonment com
mences and ending on the expiration of the last to expire of
such terms of imprisonment.
21. (1) When any parole is forfeited by conviction for an
indictable offence, the paroled inmate shall undergo a term of
imprisonment, commencing when the sentence for the indict
able offence is imposed, equal to the aggregate of
(a) the portion of the term to which he was sentenced that
remained unexpired at the time his parole was granted,
including any period of remission, including earned remis
sion, then standing to his credit,
(b) the term, if any, to which he is sentenced upon conviction
for the indictable offence, and
(c) any he spent at large after the sentence for the
indictable offence is imposed except pursuant to parole
granted to him after such sentence is imposed,
minus the aggregate of
(d) any time before conviction for the indictable offence
when the parole so forfeited was suspended or revoked and he
was in custody by virtue of such suspension or revocation,
and
(e) any time he spent in custody after conviction for the
indictable offence and before the sentence for the indictable
offence is imposed.
The plaintiff submitted that section 14 is not a
substantive provision merging two or more sen
tences; and that in any event, section 14 is ambig
uous when applied to the facts of this case and in
addition, has a retrospective effect which Parlia
ment did not intend.
The defendant submitted that the said section
merges the sentences, but on the facts of this case
it is irrelevant whether or not there was a merger
of sentences.
Any person under sentence to a penitentiary
supported by the Canadian Penitentiary Service is
entitled to certain statutory remission of sentence
by reason of section 22 of the Penitentiary Act',
and in addition, to certain earned remission. Sec
tion 22 of the Penitentiary Act reads as follows:
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.
(2) Every inmate who, on the 1st day of April 1962, was
serving a sentence for a fixed term shall be credited with
statutory remission amounting to one-quarter of the period
remaining to be served under his sentence, without prejudice to
any statutory remission standing to his credit immediately prior
to the 1st day of April 1962.
' R.S.C. 1970, c. P-6.
(3) Every inmate who, having been credited with statutory
remission, 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 or an officer of the Service designated by
him, 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, attempt to escape or being unlawfully at
large forthwith forfeits three-quarters of the statutory remis
sion standing to his credit at the time that offence was
committed.
(5) Statutory remission credited pursuant to this section to a
person who is sentenced or committed to penitentiary for a
fixed term shall be reduced by the maximum amount of
statutory remission with which that person was at any time
credited under the Prisons and Reformatories Act in respect of
a term of imprisonment that he was serving at the time he was
so sentenced or committed.
As mentioned in paragraph 5 of the facts agreed
to, as set out above, the plaintiff on April 21, 1973,
escaped from the penitentiary, was captured and
sentenced to a term of eight months consecutive.
As a consequence, pursuant to section 137 of the
Criminal Code 2 and section 22(4) of the Peniten
tiary Act, the penitentiary authorities deducted
three-quarters of the statutory remission standing
to his credit at the time the plaintiff committed the
offence of escape on April 21, 1973.
Section 137 of the Criminal Code reads as
follows:
137. (I) Except where otherwise provided by the Parole
Act, a person who escapes while undergoing imprisonment
shall, after undergoing any punishment to which he is sen
tenced for that escape, serve the portion of the term of impris
onment that he was serving, including statutory remission but
not including earned remission at the time of his escape that he
had not then served minus any time that he spent in custody
between the date on which he was apprehended after his escape
and the date on which he was sentenced for that escape.
(2) For the purpose of subsection (1) section 14 of the
Parole Act applies in determining the term of imprisonment
that a person who escapes while undergoing imprisonment was
serving at the time of his escape.
(3) A person who escapes while undergoing imprisonment
shall serve the term, if any, to which he is sentenced for the
escape and the additional term calculated in accordance with
2 R.S.C. 1970, c. C-34.
subsection (1) in a penitentiary if the aggregate of such terms is
two years or more or, if the aggregate of such terms is less than
two years,
(a) in the prison from which the escape was made, or
(b) where the court, judge, justice or magistrate by whom he
is sentenced for the escape so orders, notwithstanding the
Parole Act, in a penitentiary,
and where a person is convicted for an escape, he shall,
notwithstanding section 659, be sentenced accordingly.
(4) For the purposes of this section, "escape" means break
ing prison, escaping from lawful custody or, without lawful
excuse, being at large within Canada before the expiration of a
term of imprisonment to which a person has been sentenced.
Subsection (4) of section 22 of the Penitentiary
Act reads as follows:
(4) Every inmate who is convicted by a criminal court of the
offence of escape, attempt to escape or being unlawfully at
large forthwith forfeits three-quarters of the statutory remis
sion standing to his credit at the time that offence was
committed.
It was the plaintiff's submission that he could
not lose that much statutory remission which the
penitentiary authorities have decided he lost,
because he had, in fact, completed his 1962 four-
teen-year sentence at the time of his escape on
April 21, 1973. In other words, the plaintiff sub
mitted that no statutory remission from his 1962
fourteen-year sentence should have been deducted
by reason of his 1973 escape because his 1962
fourteen-year sentence had expired prior to his
April 21, 1973 escape.
In Marcotte v. Deputy Attorney General of
Canada', Dickson J. stated at page 111:
Section 22 of the Penitentiary Act contains, in my opinion,
an entire code governing the grant and the forfeiture of statu
tory remission. ... 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.
In Howley v. Deputy. Attorney General of
Canada 4 , Dickson J. stated at pages 111-112:
As noted in Marcotte, the entitlement to statutory remission,
though real and immediate, was by the terms of s. 22(1) of the
Penitentiary Act subject to good conduct and therefore it is
overstating the case to refer to it as a vested right. It was
always subject to divestment for bad conduct. At the time of
Marcotte, there were two ways by which an inmate might
3 [1976] 1 S.C.R. 108.
4 (1976) 30 C.C.C. (2d) 106 (S.C.C.).
forfeit statutory remission: a disciplinary offence or an escape.
By the time the applicant sought and was granted parole,
Parliament had added a third means: commission of an indict
able offence while on parole.
The position of the applicant relative to forfeiture of statu
tory remission must be determined by construing the pertinent
legislation at the time of forfeiture of the parole.
The first issue that must be determined in this
case is whether or not the combined effect of
sections 14 and 21 of the Parole Act caused the
1962 and 1968 sentences of the plaintiff to be
merged.
Both sections 14 and 21 of the Parole Act came
into effect on August 26, 1969.
If the 1962 and 1968 sentences of the plaintiff
merged, then the plaintiff has no argument in this
action and counsel for the plaintiff concedes this.
If, however, there was no merger of these sen
tences, then counsel for the plaintiff argued that
none of the statutory remission applicable to the
plaintiffs 1962 fourteen-year sentence should have
been deducted because this 1962 sentence had
expired before the 1973 escape of the plaintiff.
In my view, if there was a merger of the sen
tences, then because of section 14(1) of the Parole
Act and section 22(4) of the Penitentiary Act, the
plaintiff has no case and the arithmetic in the facts
agreed to by the parties, as set out above, is correct
in principle.
Secondly, if there was no merger, then the fol
lowing obtains: the critical date on which this
determination must b'e based is the date of the
plaintiffs escape, viz, April 21, 1973.
While it is true that the plaintiffs 1962 four-
teen-year sentence, by reason of the statutory
remission and earned remission, all the other
things being equal, would have entitled the plain
tiff to have been released from penitentiary in the
early part of 1972, he still would have been "sub-
ject to mandatory supervision" until July 3, 1976,
which was the termination date of his 1962 four-
teen-year sentence.
Section 15(1) of the Parole Act reads as follows:
15. (I) Where an inmate to whom parole was not granted is
released from imprisonment, prior to the expiration of his
sentence according to law, as a result of remission, including
earned remission, and the term of such remission exceeds sixty
days, he shall, notwithstanding any other Act, be subject to
mandatory supervision commencing upon his release and con
tinuing for the duration of such remission.
In the cases of Ex Parte Beaucage 5 , Zong v.
The Commissioner of Penitentiaries 6 and Howley
v. Deputy Attorney General of Canada (supra), it
was determined that a person sentenced to impris
onment was "subject to mandatory supervision"
during the whole of the term of his sentence. Such
therefore includes all periods of remission.
As a consequence, in view of these authorities, it
cannot be said in this case that the 1962 fourteen-
year sentence of the plaintiff expired in the early
part of 1972, because of the credits arising from
statutory remission and earned remission; instead,
it must be concluded that such sentence did not
expire until July 3, 1976.
Bearing in mind therefore the principles in the
above quoted words of Dickson J. in the Howley
case (supra) at page 112 namely:
The position of the applicant relative to forfeiture of statu
tory remission must be determined by construing the pertinent
legislation at the time of forfeiture of the parole.
and the words of Le Dain J. [at page 672] in the
Zong case (supra), namely (quoted with approval
by Dickson J. in the Howley case):
A statute is not retrospective in operation merely because it
affects an existing right. As Buckley L.J. said in West v.
Gwynne [1911] 2 Ch. 1, at page 12: "Most Acts of Parliament,
in fact, do interfere with existing rights."
it is irrelevant whether or not the plaintiff's 1962
and 1968 sentences merged (because of the provi
sions of sections 14 of the Parole Act and 22 of the
Penitentiary Act) in that, the plaintiff's position as
to forfeiture of remission must be determined by
the state of the law in 1973 when forfeiture for
5 (1976) 24 C.C.C. (2d) 126 (H.C.J.), reversed by (1977) 31
C.C.C. (2d) 219 (Ont. C.A.).
6 [ 1976] I F.C. 657.
him occurred, which law, specifically, sections 14
of the Parole Act and 22 of the Penitentiary Act in
reference to the facts of this case, cannot be said to
be retrospective.
Accordingly, the finding in this case is that the
1962 fourteen-year sentence of the plaintiff, for
any relevant purpose, including the purposes of the
Parole Act, the Penitentiary Act and the Criminal
Code did not expire until July 3, 1976. It follows,
therefore, that the computations set out in the
agreed facts above are correct in principle.
The action is therefore dismissed with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.