T-656-77
Robert Anthony McKend (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Mahoney J.—Toronto, May 17;
Ottawa, May 26, 1977.
Parole — Granted by National Parole Board — Sentence of
two years less a day definite and one year indefinite — Crime
committed near end of parole period — Parole forfeited —
Term to be served — Whether federal or Ontario legislation
applicable — Parole Act, R.S.C. 1970, c. P-2, ss. 13, 17(1),
21(1), R.S.C. 1970 (1st Supp.), c. 31, s. 21 — The Ministry of
Correctional Services Act, R.S.O. 1970, c. 110, ss. 26, 30(1).
The plaintiff, sentenced July 4, 1973 to two years less a day
definite and one year indefinite, started serving his sentence in
an Ontario correctional institution; the sentence was to expire
July 2, 1976. The National Parole Board granted parole on
September 17, 1974. The plaintiff was charged with a criminal
offence on June 25, 1976, and subsequently was convicted and
sentenced. The National Parole Board then forfeited the plain
tiff's parole. The federal and Ontario methods of calculating
the time to be served because of the forfeiture of parole resulted
in a significant difference in the plaintiffs term of
imprisonment.
Held, the action is dismissed. The National Parole Board,
under the authority of the Parole Act, had exclusive jurisdic
tion to grant the plaintiff parole at the time. There is no
provision in the federal legislation to translate a parole granted
by the National Parole Board into one granted by the Ontario
Board of Parole nor in the provincial legislation for the latter to
receive such translation. The plaintiff was not granted parole
by the Ontario Board. A parole granted by the National Parole
Board under authority of the Parole Act continues to be
governed by the provisions of that Act as to forfeiture of parole
and the consequences thereof notwithstanding that, at the date
of forfeiture, the definite portion of the paroled inmate's sen
tence had expired and that, at that time, had the question been
a grant rather than a forfeiture of parole, it would have been
dealt with by the Ontario Board of Parole.
ACTION.
COUNSEL:
David P. Cole for plaintiff.
Thomas L. James for defendant.
SOLICITORS:
David P. Cole, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: It would be to the plaintiff's
considerable advantage if the consequences of his
conviction of indictable offences, committed while
on parole, were dictated by provincial rather than
federal law. With the usual remissions, he should
be freed fairly soon rather than looking forward to
considerably more time in the penitentiary. The
material facts are agreed.
On July 4, 1973, the plaintiff was sentenced to
two years less one day definite and one year
indefinite for robbery. He commenced serving his
sentence in correctional institutions maintained by
the Province of Ontario. He applied for parole.
The Ontario Board of Parole indicated to the
National Parole Board that it had no objection to
parole being granted and the Ontario Ministry of
Correctional Services indicated its willingness to
provide supervision upon release. Parole was grant
ed by the National Parole Board and the plaintiff
was released on parole September 17, 1974. Had
all gone well for him, his sentence would have
expired July 2, 1976.
All did not go well. On June 25, 1976, he was
charged with possession of and uttering counterfeit
money, indictable offences punishable by impris
onment for at least two years. On June 26, he was
arrested and taken into custody where he remained
until he was convicted and given a nine month
sentence on October 14. He was then transferred
to Kingston Penitentiary where he remains. On
June 29, the National Parole Board issued a sus
pension warrant which was executed July 2 and
cancelled July 15. A warrant forfeiting his parole
was executed November 22.
The calculation of the resulting term of impris
onment under the applicable provisions of the fed
eral legislation' is not challenged.
Balance of original term (September 17, 1974 to
July 2, 1976) 654 days
Nine month sentence imposed October 14, 1976 273 days
Less time served under parole suspension (July 2
to 15, 1976) (14 days)
Total term commencing October 14, 1976 913 days
The calculation under the applicable provision of
the provincial legislation 2 would have been:
' The Parole Act, R.S.C. 1970, c. P-2.
17. (1) Where a person who is, or at any time was, a
paroled inmate is convicted of an indictable offence, punish
able by imprisonment for a term of two years or more,
committed after the grant of parole to him and before his
discharge therefrom or the expiry of his sentence, his parole
is thereby forfeited and such forfeiture shall be deemed to
have taken place on the day on which the offence was
committed.
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
indictable 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 convic
tion for the indictable offence, and
(c) any time 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 revoca
tion, and
(e) any time he spent in custody after conviction for the
indictable offence and before the sentence for the indict
able offence is imposed.
2 The Ministry of Correctional Services Act, R.S.O. 1970, c.
110.
30. (1) Whenever a person while on parole is convicted of
an indictable offence, he shall undergo a term of imprison
ment equal to the portion of the term to which he was
originally sentenced that remained unexpired at the time of
the offence, in addition to any term of imprisonment to
which he may be sentenced.
Unexpired portion of original sentence (June 26
to July 2, 1976) 7 days
Nine month sentence imposed October 14, 1976 273 days
Total term commencing October 14, 1976 280 days
It goes without saying that if there is any genuine
doubt at all as to which legislation ought to have
been applied, then the plaintiff is entitled to the
benefit of that doubt and to have the provincial
legislation applied.
Starting from square one, the plaintiff's parole
and its forfeiture derive from legislation duly
enacted by the Parliament of Canada in the exer
cise of its legislative jurisdiction over the criminal
law 3 . It follows that any provincial jurisdiction in
this area must have been delegated by Parliament.
The fundamental enactment by Parliament is
section 6 of the Parole Act.
6. Subject to this Act and the Prisons and Reformatories
Act, the Board has exclusive jurisdiction and absolute discre
tion to grant, refuse to grant or revoke parole.
Nothing in that Act detracts from the National
Parole Board's exclusive jurisdiction. However, the
Prisons and Reformatories Act 4 provides:
41. The Lieutenant Governor of the Province of Ontario
may appoint a Board of Parole for the Province whose duty it
shall be to inquire from time to time into the cases of prisoners
sentenced to the Ontario Reformatory, the Andrew Mercer
Reformatory or any industrial farm, and where as a result of
such inquiry the Board thinks proper, it may permit prisoners
serving indeterminate sentences to be paroled under conditions
approved of by the Solicitor General of Canada, and when the
terms on which such prisoners have been paroled have been
complied with, the Board may recommend for the consideration
of the Solicitor General the final discharge of such prisoners.
Acting upon that authority, the Ontario legislature
has provided, in The Ministry of Correctional
Services Act, as follows:
26. Subject to the regulations, the Board may order the
release on parole of any person detained in a correctional
institution,
3 The British North America Act, 1867, s. 91(27).
4 R.S.C. 1970, c. P-21.
(b) referred to in section 43 5 of the Prisons and Reformato
ries Act (Canada) and sentenced to an indeterminate
sentence,
to be at large during the indeterminate portion of his sentence.
The proposition that the consequences of forfeit
ure of the plaintiff's parole are to be governed by
the provincial rather than federal legislation is
based on the fact that his parole was forfeited after
his definite term of imprisonment had expired
during the indeterminate period of his sentence. It
is argued that since, as at the date of forfeiture,
the provincial rather than federal legislation would
have governed the grant of parole, it also, at that
date, governed the forfeiture or, at the very least,
it is not clear that the federal legislation governed
and the plaintiff is entitled to the benefit of the
doubt. As was said by Dickson J., for the majority
of the Supreme Court of Canada in the Marcotte
case 6 :
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.
The sentence of "two years less a day definite
and one year indeterminate" is not two sentences;
it is a single sentence. If that were not so on a fair
interpretation of the ordinary language of the
phrase, section 14 of the Parole Act makes it so for
purposes of that Act'. (There were, as well, two
concurrent six month sentences for possession that
had expired prior to the grant of parole and are
5 Section 43 of the Prisons and Reformatories Act became
section 41 with the coming into force of the Revised Statutes of
Canada, 1970.
6 Marcotte v. Deputy Attorney General for Canada [1976] 1
S.C.R. 108 at 115.
' 14. Where, either before, on or after the 26th day of
August 1969,
(a) a person is sentenced to two or more terms of impris
onment, or
(b) an inmate who is in confinement is sentenced to an
additional term or terms of imprisonment,
he shall, for all purposes of this Act, the Penitentiary Act and
the Prisons and Reformatories Act, be deemed to have been
sentenced, on the day on which he is so sentenced in the
circumstances described in paragraph (a), or on the day on
which he was sentenced to the term of imprisonment he is then
serving in the circumstances described in paragraph (b), to a
single term of imprisonment commencing on that day and
ending on the last day that he would be subject to confinement
under the longest of such sentences or under all of such
sentences that are to be served one after the other, whichever is
the later day.
immaterial to this action.)
The plaintiff's parole was applied for and grant
ed while he was serving the definite portion of his
sentence. The National Parole Board, under the
authority of the Parole Act, had exclusive jurisdic
tion to grant him parole at the time. There is no
provision in the federal legislation to translate a
parole granted by the National Parole Board into
one granted by the Ontario Board of Parole nor in
the provincial legislation for the latter to receive
such translation. At no time was the plaintiff
granted parole by the Ontario Board nor, in the
scheme of the provincial legislation, could he have
been. Its discretion is limited to releasing on parole
"any person detained in a correctional institution".
A person released on a parole granted by the
National Parole Board is plainly not a person so
detained.
The Parole Act makes clear that, except in the
case of a day parole, a paroled inmate is not
serving his sentence s. That being clear, the author
ity delegated by section 41 of the Prisons and
Reformatories Act in respect of "prisoners serving
indeterminate sentences" plainly does not extend
to a paroled inmate not on day parole.
There is no genuine doubt that a parole granted
by the National Parole Board under authority of
the Parole Act continues to be governed by the
provisions of that Act as to forfeiture of parole and
the consequences thereof notwithstanding that, at
the date of forfeiture, the definite portion of the
8 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 accord
ing to law, and, in the case of day parole, the paroled inmate
shall be deemed to be continuing to serve his term of imprison
ment in the place of confinement from which he was released
on such parole.
paroled inmate's sentence had expired and that, at
the time, had the question been a grant rather than
forfeiture of parole, it would have been dealt with
by the Ontario Board of Parole in the manner
prescribed by provincial legislation.
The action will be dismissed. The defendant asks
for costs and is entitled to them. However, it
appears to me that, in the circumstances, costs on
the basis of a Class I rather than a Class II action,
as called for by paragraph 1(3)(b) of Tariff A,
would be more appropriate.
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.