Ronald Norman Le Heinsworth (Plaintiff)
v.
Solicitor General of Canada, National Parole
Board, and Commissioner of Penitentiaries
(Defendants)
Trial Division, Gibson J.—Toronto, September
5; Ottawa, December 13, 1973.
Penitentiaries — Imprisonment — Parole — Revocation —
Effect on statutory remission—Parole Act, R.S.C. 1970, c.
P-2, s. 16(1)—Penitentiary Act, R.S.C. 1970, c. P-6, s. 25.
Statutory remission of a sentence is forfeited when parole
is revoked.
Marcotte v. Warden of Joyceville Federal Institution
(1973) 13 C.C.C. (2d) 114, followed.
ACTION for declaratory judgment.
COUNSEL:
Ronald R. Price for plaintiff.
Arthur C. Pennington and Paul Evraire for
defendants.
SOLICITORS:
R. R. Price, Kingston, for plaintiff.
Deputy Attorney General of Canada for
defendants.
GIBSON J.—In this action the plaintiff asks
for a declaratory judgment as follows against
the defendants (other than the National Parole
Board which on consent was struck out as a
defendant at the commencement of this trial):
(a) A declaration that the Plaintiff is entitled to be credit
ed with all statutory and earned remission that stood to
his credit at the date of his release on parole on the 23rd
day of October, 1968.
(b) An order directed to the Defendants, the Solicitor
General of Canada and the Commissioner of Penitentia
ries, that the sentence remaining to be served by the
plaintiff be recomputed in accordance with the declaration
aforesaid.
Counsel for the plaintiff put the matter for
determination in this way viz: that "The sole
issue is whether or not the plaintiff lost the
statutory remission of his sentence when his
parole was revoked."
Counsel agreed as to these facts:
1. The Plaintiff is an inmate of Joyceville Institution, a
penitentiary institution operated by the Canadian Penitentia
ry Service at the Township of Pittsburgh, County of Fron-
tenac, in the Province of Ontario.
2. The Plaintiff Ronald Norman Le Heinsworth was con
victed for the offences of robbery and possession of an
offensive weapon for which he was sentenced to imprison
ment for 9 years on the conviction of robbery and 2 years
concurrent on the charge of possession of an offensive
weapon commencing February 5, 1964.
3. His term of imprisonment under this sentence was for a
total of 9 years from February 5, 1964, that is, for a period
of 3,288 days.
4. On October 17, 1968, the National Parole Board issued
to the Plaintiff a Certificate of Parole a copy of which is
attached hereto as Exhibit 1 to this document.
5. On October 23, 1968, the Plaintiff was, pursuant to the
said Certificate of Parole, discharged from custody.
6. At the date of his release on October 23, 1968, the
Plaintiff had served a total of 1,723 days of his sentence and
had to his credit 129 days Earned Remission.
7. Subsequently, the National Parole Board suspended the
Plaintiff's parole from November 17, 1971 to January 17,
1972, and from May 20, 1972 to July 4, 1972.
8. By order dated July 4, 1972, the National Parole Board
revoked the Plaintiff's parole.
9. By Warrant of Committal dated July 12, 1972, and signed
by Judge G. R. Stewart, Ronald Norman Le Heinsworth was
recommitted to Penitentiary. A copy of the Warrant of
Committal is attached hereto as Exhibit 2.
10. It is agreed between the parties that the Plaintiff was
given credit for the 129 days earned remission that stood to
his credit on his release on October 23, 1968 and that the
Plaintiff is not pursuing this part of his claim for relief.
Counsel for the plaintiff in his submission on
this issue, in a very full and exhaustive argu
ment, put before the Court all of the cases in
which this issue has been considered in all the
Courts in Canada.
In respect to this issue, there has been a
divergence of judicial view.
I have had the opportunity to read and con
sider all of these cases and independently
reached a conclusion.
Before giving judgment in this case, however,
I awaited the decision of the Court of Appeal of
Ontario in Marcotte v. The Warden of Joyceville
Federal Institution (1973) 13 C.C.C. (2d) 114,
which was handed down in October 1973.
In that case, the conclusion of Martin J.A.,
coincided with the decision I had reached.
Because, in my respectful view, the relevant
principles enunciated in his opinion are so
authoritatively laid down, I find it unnecessary
to add any words of my own in this judgment.
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.