T-63-75
Daniel Auger (Petitioner)
v.
Canadian Penitentiary Service and the Queen
(Respondents)
Trial Division, Walsh J.—Montreal, January 27
and February 11, 1975.
Crown—Mandamus and certiorari to alter penal record—
Reference to breach of parole—Computation of release date—
Parole Act, R.S.C. 1970, c. P-2, ss. 12, 13, 15-21—Penitentia-
ry Act, R.S.C. 1970, c. P-6, ss. 22, 24, 25—Federal Court Act,
ss. 18, 28.
The petitioner was sentenced to two years' imprisonment on
October 15, 1970. He was released on February 5, 1972,
subject to mandatory supervision for a period equal to the
period of remission granted him. Before expiry of the period, he
committed the offence of armed robbery on July 26, 1972, and
after conviction on February 24, 1974, he was sentenced to
three years' imprisonment. In their calculations, the petitioner
and the respondents differed as to the duration of the second
sentence. The petitioner failed to add, and the respondents
added the number of days unserved under the original sentence.
The respondents then deducted statutory and earned remission
possible under the second sentence, together with the days of
earned remission standing to the petitioner's credit under the
original sentence. The petitioner moved for the issue of a writ
of mandamus with certiorari in aid, ordering the respondents to
submit the petitioner's record for review by the Court, with a
view to effecting deletion from the record of: (1) the reference
to the petitioner's having committed a breach of parole; (2) the
release date of July 9, 1976, so as to replace it with the date of
March 14, 1976.
Held, the petition should be dismissed. As to procedure:
mandamus could not lie against the Crown and there was
doubt as to whether the Canadian Penitentiary Service was an
acceptable party respondent, rather than the Commissioner of
Penitentiaries, but it was preferable to deal with the petition on
the merits, assuming jurisdiction of the Trial Division, under
section 18 of the Federal Court Act. As to the accuracy of the
record and the time to be served under the second sentence: the
petitioner committed, after his release, an indictable offence
within the terms of section 17(1) of the Parole Act, made
applicable by section 15(2) to cases of release under mandatory
supervision. Thus the reference in the petitioner's record to
"breach of parole" was justified. Section 17 brought into play
section 21(1) under which the respondents' calculations rightly
added to the second sentence the time unserved under the
original sentence. In allowing the petitioner earned remission
outstanding from the original sentence, the calculations were in
accordance with section 24(2) of the Penitentiary Act. The writ
of mandamus lay to secure the performance of a public duty in
which the applicant had a sufficient legal interest. There was
no failure of the respondents to perform the duty of advising
the petitioner of the date when his release could be anticipated,
assuming that he earned the maximum earned remission to
which he might become entitled during his imprisonment.
Howarth v. National Parole Board (1975) 18 C.C.C. (2d)
385, affirming [1973] F.C. 1018; Ex Parte McCaud,
(1965) 1 C.C.C. 168, considered. Marcotte v. Deputy
Attorney General of Canada (1975) 19 C.C.C. (2d) 257,
reversing (1974) 13 C.C.C. (2d) 114, distinguished. In re
Zong (T-4425-74, not as yet reported), referred to.
PETITION.
COUNSEL:
B. Coleman for petitioner.
J. P. Belhumeur for respondents.
SOLICITORS:
Kronish, Zilbert & Coleman, Montreal, for
petitioner.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is a motion for the issue of a
writ of mandamus with certiorari in aid ordering
respondents to submit the record of petitioner
before this Court for judicial review with a view to
ordering respondents to delete from petitioner's
said record any and all reference to his having
committed a breach of his parole and ordering
them to delete the 9th day of July, 1976 as being
his date of release and to replace same with the
14th day of March, 1976. The allegations of the
petitioner are supported by an affidavit signed by
Two amendments were made during the
course of the hearing with the permission of the
Court, the first being to paragraph 9 of the peti
tion so as to add after the words "armed robbery"
the words "for an offence committed on July 26,
1972". The second was to insert an additional
paragraph 17a reading:
17a. WHEREAS the Petitioner has requested the Respondents
that they correct his probable date of release so as to be the
14th day of March, 1976, and to delete from Petitioner's
dossier any reference to breach of parole, but Respondents
refused or neglected to so act.
Before going into the facts as disclosed in the
motion it should be pointed out that mandamus
cannot lie against the Queen and there is consider
able doubt as to whether the Canadian Penitentia
ry Service as such is a proper party to name as
respondent rather than the Commissioner of Peni
tentiaries or the officer allegedly responsible for
the calculation of the date of petitioner's release
which is what is primarily complained of. These
are matters which could presumably be remedied
by an appropriate amendment, however, or by a
new motion and in view of the conclusion which I
have reached with respect to the merits of the
present motion, it is preferable not to dismiss it on
a purely procedural ground or to decide whether it
could be properly directed to the Canadian Peni
tentiary Service.
A further objection might be raised as to wheth
er the matter is properly brought before the Trial
Division of this Court on a section 18 application
rather than before the Court of Appeal by way of
review under section 28 of the Federal Court Act.
I am aware that the Court of Appeal has decided
in the case of Howarth v. National Parole
Board [1973] F.C. 1018, that the decision to
suspend parole in the case before it by virtue of
section 16(4) is a decision "of an administrative
nature not required by law to be made on a
judicial or quasi-judicial basis" and accordingly it
did not have jurisdiction under section 28, and that
this decision was upheld by the majority judgment
of the Supreme Court of Canada [(1975) 18
C.C.C. (2d) 385] which, in turn, referred to the
judgment of Spence J. in Ex Parte McCaud'. It is
apparent that those cases were dealing with deci
sions in which the Board was called upon to exer
cise its discretion in connection with the suspension
and revocation of parole, whereas in the present
case we are dealing with forfeiture of parole which
takes place automatically by virtue of section
17(1) of the Parole Act 2 where a paroled inmate is
convicted of an indictable offence punishable by
imprisonment for a term of two years or more,
committed after the granting of parole to him and
before his discharge therefrom or the expiry of his
sentence, in which event the forfeiture is deemed
1 (1965) 1 C.C.C. 168.
2 R.S.C. 1970, c. P-2.
to have taken place on the day in which the
offence was committed. This section of the Act
reads as follows:
17. (1) Where a person who is, or at any time was, a paroled
inmate is convicted of an indictable offence, punishable 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.
The effect of forfeiture is set out in section 21(1)
which reads as follows:
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 6f
(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, and
(b) the term, if any, to which he is sentenced upon conviction
for the indictable offence,
minus
(c) any time he spent in custody after conviction for the
indictable offence, and before the sentence was imposed.
Section 20(1) of the Act reads:
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 Penitentiary Acta sets out in sections 22 and
24 respectively the convict's right to statutory and
earned remission and section 25 reads as follows:
3 R.S.C. 1970, c. P-6.
25. Where,
(a) under the Parole Act, authority is granted to an inmate
to be at large during his term of imprisonment, or
(b) a person who is at large by reason of statutory or earned
remission is subject to mandatory supervision under the
Parole Act,
his term of imprisonment, for all purposes of that Act, includes
any period of statutory remission and any period of earned
remission standing to his credit when he is released.
It is petitioner's contention that these sections of
the statute have been wrongly interpreted in the
calculation of remissions to which petitioner is
entitled and hence will have the effect of delaying
his release. Unlike a decision under section 16 of
the Parole Act for suspension and revocation of
parole, the interpretation of the law as to the date
when an inmate should be released, which depends
on what statutory or earned remission he has
forfeited when the forfeiture takes place by virtue
of the commission of a further offence bringing
into play section 17(1) of the Parole Act, would
appear to be a decision which would have to be
made on a judicial or quasi-judicial basis and
bring into play section 28(1)(b) of the Federal
Court Act on the ground that the Board "erred in
law in making its decision or order whether or not
the error appears on the face of the record". It
might well be therefore that the Court of Appeal
did have the right to review a decision of this
nature, in which event the Trial Division would not
have jurisdiction to entertain the present petition.
Since this question seems to be open to some
doubt, however, and the Trial Division has accept
ed jurisdiction in connection with somewhat simi
lar petitions, I will therefore deal with the petition
before me on the assumption that I have jurisdic
tion to do so.
Petitioner's motion sets out that he was on
October 15, 1970 convicted of theft and sentenced
to two years' imprisonment being the equivalent of
731 days, and that he was entitled under section
22(1) of the Penitentiary Act to statutory remis
sion of 25 per cent amounting to 183 days and to a
further earned remission in accordance with sec
tion 24(1) of the Act, amounting to 50 days so that
his total imprisonment in fulfilment of his original
sentence would have amounted to 498 days. At the
conclusion of this period on February 5, 1972 he
was accordingly released subject to mandatory
supervision by the Parole Board in accordance
with the provisions of section 15 (1) of the Parole
Act, which reads as follows:
15. (1) 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.
Section 15 (2) reads as follows:
15. (2) Paragraph 10(1)(e), section 11, section 13 and sec
tions 16 to 21 apply to an inmate who is subject to mandatory
supervision as though he were a paroled inmate on parole and
as though the terms and conditions of his mandatory supervi
sion were terms and conditions of his parole.
and thus brings sections 16, 20 and 21 in to play.
The period of mandatory supervision of 233
days according to petitioner would have terminat
ed on October 14, 1972 and before this period
expired petitioner committed an offence of armed
robbery on July 26, 1972 although he was not
convicted until February 24, 1974 and sentenced
to a period of three years' imprisonment. Making
the same calculations as before, petitioner states
that this would have amounted to 1,095 days'
imprisonment for which he would have been en
titled to a statutory remission of 274 days and
earned remission of 74 days making a total of 348
days, therefore entitling him to release on March
14, 1976 instead of July 9, 1976, the date estab
lished by the National Parole Board. In making
this calculation it is apparent that petitioner is not
adding back the statutory remission or earned
remission resulting from the original sentence.
Petitioner also complains of the notation on his
record that he has committed a breach of parole,
stating that this is not the fact in the present case.
He was imprisoned again on March 14, 1974 by
virtue of a warrant signed under the provisions of
sections 16, 20 and 21 of the Parole Act.
Figures submitted at the hearing by respondents
show a slight difference in calculating the earned
remission and length of imprisonment by virtue of
the original sentence and conclude that when he
was released he had 232 days to serve but for the
statutory and earned remission and would there
fore remain under mandatory supervision for this
period. His second sentence, according to respond
ents' figures, would amount to 1,096 days and they
would then add the 232 days unserved of the
original sentence making a total of 1,328 days
from which they deduct 332 days for statutory
remission, 86 days for earned remission, and 45
days earned remission to his credit resulting from
the original sentence for a total of 463 leaving a
time of 865 days to be served which would result
in his liberation on July 9, 1976. In effect, there
fore, he has been given credit for the earned
remission resulting from his original imprisonment
pursuant to section 24(2) of the Penitentiary Act
which reads as follows:
24. (2) Upon being committed to a penitentiary pursuant to
section 20 or 21 of the Parole Act, an inmate shall be credited
with earned remission equal to the earned remission that stood
to his credit pursuant to any Act of the Parliament of Canada
at the time his parole or mandatory supervision was revoked or
forfeited.
The parties are in agreement that it is not the
minor discrepancies of a few days in the calcula
tion of petitioner's statutory or earned remission
which is in issue but the principle of adding back
the statutory remission in this case.
Petitioner relies on the Supreme Court case of
Marcotte v. Deputy Attorney General of Canada
(1975) 19 C.C.C. (2d) 257, being a majority
decision of the whole Bench with four dissents. It
must be emphasized, however, that this dealt with
section 16(1) of the Parole Act 4 which has now
been amended, and has become section 20(1)
(supra) of the present Parole Act by the deletion
of the word "original" which appeared before the
words "term of imprisonment" in the former Act
and by adding at the end of the former section the
4 S.C. 1958, c. 38.
words "to him, including any period of remission,
including earned remission, then standing to his
credit, less any time spent in custody as a result of
a suspension of his parole". At the time that
judgment was concerned with, section 24 and sec
tion 25 of the Penitentiary Act read as follows:
24. Every inmate may, in accordance with the regulations,
be credited with three days' remission of his sentence in respect
of each calendar month during which he has applied himself
industriously to his work, and any remission so earned is not
subject to forfeiture for any reason.
25. Where, under the Parole Act, authority is granted to an
inmate to be at large during his term of imprisonment, the term
of imprisonment, for all purposes of that Act, includes any
period of statutory remission standing to his credit when he is
released but does not include any period of earned remission
standing to his credit at that time.
Although the words "and any remission so earned
is not subject to forfeiture for any reason" have
now been removed from section 24, the same effect
results from section 24(2) of the present Peniten
tiary Act (supra) so that the inmate remains cred
ited with earned remission equal to the earned
remission that stood to his credit at the time his
parole or mandatory supervision was revoked or
forfeited. The amendment to section 25 (supra) is
significant, however, for whereas under the former
Act the term of imprisonment for an inmate who
had been granted authority to be at large included
the statutory remission standing to his credit when
he was released but did not include any period of
earned remission, the amendment made now
includes any period of earned remission. The effect
of these two sections would make him subject to
mandatory supervision for a period including his
period of earned remission but does not deprive
him of the earned remission credited to him at the
time of the revocation of his parole under section
20(1) of the Parole Act or forfeiture of same
under section 21(1). As already indicated, the
calculation made by the Parole Board in the
present case has given him this credit. In rendering
the majority judgment in the Marcotte case
(supra) Dickson J. stated [at pages 260 and 262]:
In my opinion s. 25 of the Penitentiary Act does not apply to s.
16(1) of the Parole Act , .
It is unnecessary to emphasize the importance of clarity and
certainty when freedom is at stake. No authority is needed for
the proposition that if real ambiguities are found, or doubts of
substance arise, in the construction and application of a statute
affecting the liberty of a subject, then that statute should be
applied in such a manner as to favour the person against whom
it is sought to be enforced.
It is important to note, however, that in commenc
ing his judgment the learned Justice states [at
page 2581:
The issue is whether a paroled inmate whose parole was
revoked on August 29, 1968 thereby lost his entitlement to
statutory remission standing to his credit at the time of his
release on parole. The resolution of the issue depends on the
proper construction, as of that date (the legislation having since
been amended), of s. 22(1)(3)(4), s. 24 and s. 25 [rep. and sub.
1968-69 c. 38, s. 108] of the Penitentiary Act, 1960-61 (Can.),
c. 53, ... and of s. 16(1) of the Parole Act, 1958 (Can.) c.
38....
Although the amendments which are now in the
Act had been made at the time the appeal was
held, therefore, the judgment has very properly
confined itself to a consideration of the statutes in
question as they existed on August 29, 1968, the
time the inmate's parole was revoked. This was
even more strongly emphasized by the judgment of
Pigeon J. who, although agreeing with the majori
ty judgment, stated [at page 258]:
I agree with Dickson J.'s conclusion on his view that under
the law in force when appellant's parole was revoked this did
not involve forfeiture of statutory remission standing to his
credit.
It would seem that he felt it necessary to empha
size that this decision was only applicable to the
law in force when the parole was revoked and that
he leaves the question open as to whether he would
have reached the same conclusion under the law as
it now exists.
5 The present section 20(1) (supra).
Petitioner's counsel contends, however, that the
amendments did not change the law and in support
of this argument relies on the majority judgment
of Estey J. in the same case in the Ontario Court
of Appeal, Ex Parte Marcotte 6 in which he states
at page 133 that the omission of the word `origi-
nal" in the new section 16 (now section 20) of the
Parole Act does not carry with it the inference that
the law was thereby changed. Reference was also
made to page 135 of this judgment where the
learned Judge stated:
Section 16 of the Parole Act as amended by the Criminal
Law Amendment Act, 1968-69, set out above, expressly
includes all remission including earned remission in the unex-
pired portion of his term of imprisonment which the parolee is
required to serve on recommittal following revocation of his
parole.
While earned remission is also now included in the phrase
"the portion of his term of imprisonment that remained unex-
pired", s. 24(2) of the Penitentiary Act, however, provides that
upon being committed to a penitentiary upon revocation or
forfeiture of parole an inmate shall be credited with earned
remission equal to the earned remission that stood to his credit
at the time his parole was revoked or forfeited.
In my view, with the exception of the inclusion of earned
remission in the phrase "the portion of his term of imprison
ment that remained unexpired" at the time his parole was
granted, the meaning of that phrase was not changed by the
present section although it may now be found within the four
corners of the section itself without resort to s. 25 of the
Penitentiary Act. No inference can be drawn from the reword
ing of the section that prior to the amendment a parolee whose
parole was revoked was entitled to claim the benefit of statu
tory remission standing to his credit at the time he was released
on parole.
In Re Samuel, [1913] A.C. 514 at p. 526, Viscount Haldane,
L.C., delivering the judgment of the Judicial Committee of the
Privy Council, observed:
It is not a conclusive argument as to the construction of an
earlier Act to say that unless it be construed in a particular
way a later enactment would be surplusage. The later Act
may have been designed, ex abundante cautela, to remove
possible doubts.
It is important to note, however, that the majority
judgment of the Ontario Court of Appeal,
although expressing the view that the law had not
been changed by the amendments, concluded that
nevertheless respondent, in revocation of his
parole, was not entitled to the benefit of statutory
6 (1974) 13 C.C.C. (2nd) 114.
remission standing to his credit at the time of his
release on parole. While this decision was reversed
by the Supreme Court of Canada, it very clearly
confined itself to the law as it stood prior to the
amendments and did not discuss the question of
whether the amendments have or have not
changed the law. The conclusion reached by the
majority judgment in the Ontario Court of Appeal
therefore that they have not had this effect
becomes in the light of the Supreme Court of
Canada judgment in the nature of an obiter com
ment and cannot be held to have the force of stare
decisis.
My conclusion that the Marcotte case (supra)
does not constitute authority for the proposition
that since the amendment to the sections in ques
tion of the two statutes effected by the Criminal
Law Amendment Act, 1968-69', a person whose
parole has been revoked or forfeited as a result of
the commission of a further offence before the
parole has terminated does not have to serve the
statutory remission with which he had been credit
ed at the time of his imprisonment for the first
offence, is reinforced by the judgment of Beetz J.
in the case of Howarth v. National Parole Board
(supra) in which, when concurring with the
majority judgment of Mr. Justice Pigeon, he
states:
It may be unfortunate that, under section 20(1) of the Parole
Act, statutory remission for time served on parole by an inmate
and earned remission standing to an inmate's credit at the time
of his release on parole be lost automatically upon revocation,
particularly since parole may be suspended and, presumably,
revoked for reasons which are not necessarily connected with a
breach of the terms or conditions of the parole. However, this
in my view does not change the nature of the decision of the
Parole Board when it revokes a parole granted to an inmate.
While the issue before the Court in that case was
merely the question of whether the decision of the
Parole Board was a purely administrative decision
or not, and the Court was not called upon to
decide whether statutory remission and earned
remission standing to an inmate's credit at the
7 S.C. 1968-69, c. 38.
time of his release on parole are lost upon revoca
tion, this would appear to be his view and it is of
particular significance when it is remembered that
he subsequently concurred in the majority judg
ment of Mr. Justice Dickson in the Marcotte case
(supra) deciding this question on the basis of law
as it stood before the amendments.
Both the Penitentiary Act and the Parole Act
were amended by the same statute, the Criminal
Law Amendment Act, 1968-69 (supra), and I
believe that one has to be read in the light of the
other. There may well remain some area of
ambiguity with respect to the question of earned
remission in view of the provisions of sections
24(2) and 25 of the Penitentiary Act and sections
20(1) and 21(1) of the Parole Act, but the ques
tion of earned remission is not an issue in the
present case. Section 24(2) of the Penitentiary Act
clearly gives the inmate upon being committed to
penitentiary pursuant to section 20 or 21 of the
Parole Act, credit only for earned remission which
stood to his credit at the time his parole or manda
tory supervision was revoked or forfeited and
makes no similar reference to statutory remission.
The cross reference to section 20 or 21 of the
Parole Act makes it apparent that the two statutes
are to be read together. There was no similar
reference to the corresponding sections of the
Parole Act in section 24 of the Penitentiary Act as
it read before the amendments. It is not necessary
now therefore to rely entirely on section 25 of the
Penitentiary Act as the majority judgment of the
Supreme Court of Canada did in the Marcotte
case (supra). It is section 21(1) of the Parole Act
which corresponds with section 17(1) of the former
statute rather than with section 20(1) which
replaced the old section 16(1) that we are dealing
with in the present case since it is a question of
forfeiture of parole and not of suspension or revo
cation as in the Marcotte case, but this makes no
difference as the wording of the two new sections
is substantially the same and the present wording
is quite clear since the words "including any period
of remission, including earned remission" certainly
must include statutory remission.
In conclusion, therefore, without going into the
details of the calculation, I can find no error of law
on the face of the record in the manner in which
the calculation has been made to determine the
date of petitioner's release. Furthermore, with
respect to mandamus, this writ lies to secure the
performance of a public duty, in the performance
of which the applicant has a sufficient legal inter
est when the performance has been refused by the
authority obliged to discharge it (see S. A.
deSmith, Judicial Review of Administrative
Action, 2nd ed. page 561.) In general it will not lie
to the purpose of undoing that which has already
been done even in contravention of statute. (op.
cit. page 563.) Respondents have not failed to
perform the duty of advising petitioner of the date
when his release can be anticipated assuming he
earns the maximum earned remission to which he
may become entitled during his incarceration.
With respect to the deletion from petitioner's
record of any reference to his having committed a
breach of parole, it is true that the Parole Act
makes a distinction between "parole" and "man-
datory supervision" in section 12 and that petition
er's new offence took place while he was at liberty
but under mandatory supervision as a result of the
statutory and earned remissions standing to his
credit, rather than as a result of parole at an
earlier date. However, section 15(2) of the Act,
(supra) dealing with mandatory supervision makes
section 13 (section dealing with effects of parole)
and sections 16-21 applicable "as though he were a
paroled inmate on parole and as though the terms
and conditions of his mandatory supervision were
terms and conditions of his parole". It would
appear to me, therefore, that when his parole is
forfeited by virtue of section 17, bringing section
21(1) into play, it is not inaccurate to refer to the
"breach of parole". In fact, section 21(1) com
mences with the words "any parole is forfeited by
conviction for an indictable offence".
•
My brother Mr. Justice Addy has had a some
what similar issue to decide in the case of Robert
Ernest Zong, being an application for declaratory
relief directed to the Commissioner of Penitentiar
ies, dealing with forfeiture of parole, and has
reached the same conclusion.
Petitioner's motion will therefore be dismissed
with costs.
ORDER
Motion for mandamus with certiorari in aid is
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.