T-238-75
In re Douglas A. MacDonald and in re application
for a declaration directed to Commissioner of
Penitentiaries
Trial Division, Mahoney J.—Halifax, April 15,
1975.
Extraordinary remedies—Certiorari—Inmate under man
datory supervision returned to custody—Whether committed
to fixed term when returned or when warrant of recommittal
issued—Parole Act, R.S.C. 1970, c. P-2, ss. 15(2), 16(1), (2)
and (5), 18(2), 20(1)—Penitentiary Act, R.S.C. 1970, c. P-6, s.
22(1)—Federal Court Rules 319, 400, 603.
Applicant was released under mandatory supervision having
576 days remanet in two sentences. His mandatory supervision
was suspended on July 13, 1974, and on January 13, 1975, a
warrant of recommittal was issued. Applicant claims that he
has not been credited with statutory remission for the 184 day
period between July 13, 1974 and January 13, 1975.
Held, granting an order of certiorari, under section 15(2) of
the Parole Act, applicant was deemed to be a paroled inmate
whose parole was suspended under section 16, and who was
taken into custody on July 13, 1974. Pursuant to section 16(5),
as and from July 13, he was deemed to be serving his sentence.
He had been apprehended under a warrant issued under section
16; there is no provision in that section requiring him to appear
again before a magistrate and be recommitted in the event his
parole is revoked. July 13, 1974 is the date upon which
applicant was sentenced for purposes of section 22(1) of the
Penitentiary Act in so far as the balance of his sentence is
concerned.
Sherman and Ulster Ltd. v. Commissioner of Patents
(1974) 14 C.P.R. (2nd) 177; In re Zong [1975] F.C. 430,
considered. Marcotte v. Deputy Attorney General of
Canada (1975) 19 C.C.C. (2nd) 257 reversing (1974) 13
C.C.C. 114 and affirming (1973) 10 C.C.C. 441, applied.
Re Morin (1969) 2 C.C.C. 171; Ex parte Gannon (1971) 3
C.C.C. (2nd) 267 and Ex parte Allard (1971) 1 C.C.C.
461, disagreed with.
APPLICATION.
COUNSEL:
P. Harvison for applicant.
D. Richard for respondent.
SOLICITORS:
Penitentiary Legal Services, Sackville, N.B.,
for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This application originally sought
a declaratory judgment. Counsel for the respond
ent cited this Court's decision in Sherman &
Ulster Ltd. v. Commissioner of Patents' in support
of a preliminary objection to the Court granting
declaratory relief in an application under Rule 319
et seq. rather than as a result of an action com
menced under Rule 400. This depends on an inter
pretation of Rule 603. I found the objection to be
well founded. I should note that the same objection
was not raised or considered in the recent decision
of my brother Addy in In re Zong 2 . By consent,
the originating notice of motion was amended to
seek "an order in the nature of certiorari to review
the proper statutes to be applied and the interpre
tation thereof, to the sentences being served by the
Applicant".
The evidence is that the applicant was convicted
of breaking and entering on November 5, 1970
and sentenced to 4' years imprisonment. On April
20, 1971 he was convicted of being unlawfully at
large and sentenced to an additional six months
consecutive. The parties are agreed that when he
was released on mandatory supervision April 7,
1974 he had served 1250 days and had 576 days
remnant in the sentences. On July 13, 1974 he was
apprehended and his release on mandatory super
vision was suspended as the result of an offence for
which he was subsequently convicted and fined in
summary conviction proceedings. The suspension
was, it is presumed, reviewed within 14 days by a
member of the Parole Board under section 16(3)
of the Parole Act' who had the option of cancell
ing the suspension or referring the case to the
Board. He referred it. On January 13, 1975 the
applicant was taken before a magistrate, informed
that the Board had, on September 3, 1974, ordered
the revocation of his release under mandatory
supervision, and a warrant of recommittal was
1 (1974) 14 C.P.R. (2nd) 177.
2 [1975] F.C. 430.
3 R.S.C. 1970, c. P-2.
issued by the Magistrate.
The substance of the applicant's complaint is
that he has not been credited with statutory remis
sion during the period July 13, 1974, when he was
apprehended to January 13, 1975, when he was
formally recommitted, a period of 184 days.
Statutory remission arises under section 22(1) of
the Penitentiary Act 4 .
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. [The emphasis
is mine.]
The whole question is whether an inmate
returned to custody under section 16 of the Parole
Act is, by virtue of subsection (5) of that section,
committed to a fixed term when he is so returned
or whether he is only committed when a warrant of
recommittal is issued. For all purposes of this case,
the effect of section 15(2) of the Parole Act is that
the applicant was deemed to be a paroled inmate
on parole whose parole was duly suspended under
the provisions of section 16 and who was taken
into custody pursuant thereto on July 13, 1974.
Subsection (5) of that section provides:
16. (5) An inmate who is in custody by virtue of this section
shall be deemed to be serving his sentence.
Thus as of and from July 13, 1974, the applicant
was deemed to be serving his sentence. It is his
position that he was, on that date, in law, sen
tenced or committed to a fixed term in penitentia
ry and that section 22(1) of the Penitentiary Act
came into play that date. The respondent's position
is that section 22(1) did not come into play until
the applicant was formally recommitted to the
penitentiary on January 13, 1975. The only refer
ence I can find in the Act to a warrant for the
recommitment of a paroled inmate is in section
18(2). That has no application in this case. It is a
simple fact that the applicant had not been
R.S.C. 1970, c. P-6.
apprehended under a warrant issued under section
18; he had been apprehended under a warrant
issued under section 16.
16. (1) A member of the Board or any person designated by
the Board may, by a warrant in writing signed by him, suspend
any parole ... and authorize the apprehension of a paroled
inmate ....
(2) A paroled inmate apprehended under a warrant issued
under this section shall be brought as soon as conveniently may
be before a magistrate, and the magistrate shall remand the
inmate in custody until the suspension of his parole is cancelled
or his parole is revoked or forfeited.
There is no provision in section 16 for the
apprehended inmate to again appear before a
magistrate and be committed to a penitentiary in
the event his parole is revoked. He is already in
custody and, by virtue of section 16(5), deemed to
be serving his sentence. The sentence he is deemed
to be serving is a fixed sentence.
The problem arises because of the requirement
of section 20(1) that an inmate whose parole has
been revoked be recommitted.
20. (1) Where the parole granted to an inmate has been
revoked, he shall be recommitted to the place of confinement
from which he was allowed to go and remain at large at the
time parole was granted to him, to serve the portion of his term
of imprisonment that remained unexpired at the time parole
was granted to him, including any period of remission, includ
ing earned remission, then standing to his credit, less any time
spent in custody as a result of a suspension of his parole.
The precise point in issue here does not appear to
have been considered by the Supreme Court of
Canada in Marcotte v. Deputy Attorney General
of Canada'. In the judgment of the Court, Dick-
son J. appears to have accepted August 29, 1968
as the critical date. A reference to the trial
judgment' of Henderson J. discloses that Marcotte
... found his parole suspended on August 29, 1968 and subse
quently revoked on February 28, 1969.
A reference to the judgment of Martin J.A. in the
Ontario Court of Appeal' discloses that the war
rant of recommittal was also issued February 28,
1969.
s (1975) 19 C.C.C. (2nd) 257.
6 (1973) 10 C.C.C. 441 at 442.
(1974) 13 C.C.C. 114 at 125.
I do not want to infer too much from the
apparent acceptance of the date of suspension,
rather than the date of revocation or the date of
recommittal as the critical date in the Marcotte
case. I do however accept the Marcotte case as
overruling Re Morin' upon which Ruttan J. of the
Supreme Court of British Columbia relied 9 in not
following his brother Smith 1° where the precise
point was in issue. The 1969 amendments to the
Parole Act", which Dickson J. was so meticulous
to point out were not in effect when Marcotte's
parole was suspended and revoked, do not have
any bearing on the narrow issue in this case.
In light of the Marcotte decision, the result in
the Allard case is to be preferred to that in the
Gannon case. That result obviates the necessity of
inquiring into whether the lapses of time _ that
occurred in this instance would themselves have
given the applicant a right to relief in this Court.
I find that July 13, 1974 is the date upon which
the applicant was "sentenced or committed to
penitentiary for a fixed term" for purposes of
section 22(1) of the Penitentiary Act in so far as
the balance of his sentence was concerned. The
order sought will issue accordingly. The applicant
is entitled to his costs including the reasonable
travelling expenses of his counsel from Sackville,
N.B. to Halifax, N.S.
8 (1969) 2 C.C.C. 171.
9 Ex. p. Gannon (1971) 3 C.C.C. (2nd) 267.
1° Ex. p. Allard (1971) 1 C.C.C. (2nd) 461.
S.C. 1968-69, c. 38.
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.