A-351-75
National Parole Board (Appellant)
v.
Douglas Alexander MacDonald (Respondent)
Court of Appeal, Urie, Ryan and Le Damn JJ.—
Ottawa, December 17 and 23, 1975.
Imprisonment—Appeal—Inmate under mandatory supervi
sion 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, 16, 20(1)—Penitentiary
Act, R.S.C. 1970, c. P-6, s. 22(1).
Respondent was released under mandatory supervision
having 576 days remanet in 2 sentences. His mandatory super
vision was suspended July 13, 1974, and on January 13, 1975, a
warrant of recommittal was issued. Appellant claimed that he
has not been credited with statutory remission for the 184 day
period between July 13, 1974 and January 13, 1975. The Trial
Division held that July 13, 1974 is the date on which respond
ent was sentenced for purposes of section 22(1) of the Peniten
tiary Act in so far as the balance of his sentence is concerned.
Held, allowing the appeal, the order of the Trial Judge is set
aside. The fact that an inmate may happen to have been held in
custody, during the period of suspension, in the very penitentia
ry to which he would otherwise havè been recommitted, should
not make a difference in the credit he receives by way of
statutory remission. Section 22(1) of the Penitentiary Act
should be construed as requiring the statutory remission to be
credited as of the date of revocation; for when the inmate was
received into the penitentiary on suspension, he had not been
committed for a fixed term. September 3 is the date upon
which respondent was committed for a fixed term for purposes
of section 22(1).
In re Hanna (unreported) and Attorney General of
Canada v. Quocksister (unreported), discussed.
APPEAL.
COUNSEL:
P. Evraire for appellant.
P. Harvison for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
c/o Penitentiary Legal Services, Sackville,
N.B., for respondent.
The following are the reasons for judgment
rendered in English by
RYAN J.: This is an appeal from a decision of
the Trial Division 1 , dated April 18, 1975, in which
it was ordered and adjudged "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 con
cerned ..." when his release on mandatory super
vision was suspended and revoked.
The proceedings in the Trial Division were com
menced by an "originating notice of motion under
section 18 of the Federal Court Act". The notice
stated:
TAKE NOTICE that an application will be made on behalf of
Douglas A. MacDonald before the presiding judge in chambers
at Court Room 5 at the Law Courts, 1815 Upper Water Street,
Halifax, Nova Scotia on the day of , A.D.,
1975 at o'clock in the or as soon thereafter
as the motion may be heard for a declaration as to the proper
statutes to be applied and the interpretation thereof, to the
sentences being served by the Applicant.
In his reasons for judgment, the learned Trial
Judge states [at page 544]:
This application originally sought a declaratory judgment.
Counsel for the respondent cited this Court's decision in Sher-
man & Ulster Ltd. v. Commissioner of Patents ((1974) 14
C.P.R. (2d) 177) in support of a preliminary objection to the
Court granting declaratory relief in an application under Rule
319 et seg. rather than as a result of an action commenced
under Rule 400. This depends on an interpretation of Rule 603.
I found the objection to be well founded .... 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 interpretation thereof, to the sentences being
served by the Applicant".
With respect, however, the notice, as amended,
remained an application seeking a declaratory
judgment. Insertion of the words "an order in the
nature of certiorari" did not change the essential
nature of the claim. The claim, as amended, did
not, for example, seek a review or quashing of any
order or decision. It remained, in its true charac
ter, a claim for a declaration. And the judgment
appealed from was a response to this claim.
[ 1975] F.C. 543 at page 547.
A consequence may be that an inappropriate
procedure was followed in the proceedings below.
No prejudice, appears, however, to have resulted 2 .
Before us, moreover, both parties disclaimed any
reliance on procedural error at the trial level. Both
united in a quest for a judgment on the merits.
The respondent was sentenced to a term of
imprisonment totalling five years, commencing on
November 5, 1970. He was released on April 7,
1974 on mandatory supervision pursuant to section
15 of the Parole Act'. Section 15 provides:
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.
(2) Paragraph 10(1)(e), section 11, section 13 and sections
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.
The period of supervision was due to expire on
October 22, 1975. On July 13, 1974, however, the
respondent was apprehended and his release on
mandatory supervision was suspended pursuant to
subsection 16(1) of the Parole Act 4 as the result of
an offence for which he was subsequently convict
ed and fined in summary conviction proceedings.
2 The benefits and burdens involved in a proceeding under
Rule 400 are referred to in Sherman & Ulster Ltd. v. Commis
sioner of Patents (1974) 14 C.P.R. (2d) 177, at page 180.
R.S.C. 1970, c. P-2.
4 Section 16 of the Parole Act provides:
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, other than a parole that has been
discharged, and authorize the apprehension of a paroled
inmate whenever he is satisfied that the arrest of the inmate
is necessary or desirable in order to prevent a breach of any
term or condition of the parole, or for the rehabilitation of
the inmate or the protection of society.
It is not disputed that the respondent was com
mitted to penitentiary on his apprehension on July
13, 1974. A warrant of committal upon suspension
was issued by a provincial court judge on July 15,
1974, although the respondent by then was already
back in penitentiary.
The National Parole Board, acting under sub
section 16(4), revoked the mandatory supervision
on September 3, 1974.
Subsection 20(1) of the Parole Act provides:
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 result of a suspension of his parole.
The effect of subsection 20(1) is that an inmate
whose parole is revoked is recommitted to the
penitentiary from which he was released'. If, as in
this case, the inmate is already in custody in the
penitentiary from which he was released, a formal
(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.
(3) The person by whom a warrant is signed pursuant to
subsection (1) or any other person designated by the Board
for the purpose shall forthwith after a remand by a magis
trate of the paroled inmate named therein review the case
and, within fourteen days from the time of such remand,
either cancel the suspension of his parole or refer the case to
the Board.
(4) The Board shall, upon the referral to it of the case of a
paroled inmate whose parole has been suspended, review the
case and cause to be conducted all such inquiries in connec
tion therewith as it considers necessary, and forthwith upon
completion of such inquiries and its review it shall either
cancel the suspension or revoke the parole.
(5) An inmate who is in custody by virtue of this section
shall be deemed to be serving his sentence.
5 Here, of course, it was the term of mandatory supervision
that was revoked but, because of subsection 15(2), the conse
quence is the same.
recommittal is not necessary 6 . As of the decision to
revoke, his status in the penitentiary changes from
that of a person in custody for an indefinite period
consequent upon the suspension of his mandatory
supervision to one serving a fixed term, namely the
portion of his term of imprisonment (including
remission) that remained unexpired at the time he
was released on mandatory supervision less the
time he spent in custody during suspension. In this
case, then, the respondent was bound to serve a
period equal to the total period of remission stand
ing to his credit when he was released less his
period in custody as a result of the suspension.
To appreciate the point at issue in this appeal, it
is next necessary to refer to subsection 22(1) of the
Penitentiary Act. This subsection provides:
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.
My understanding is that, in computing the
period during which the respondent was required
to remain in penitentiary, credit was not given for
statutory remission in respect of the period from
July 13, 1974 to January 13, 1975. The signifi
cance of the date January 13, 1975 is that it was
not until that date that a formal warrant of com
mittal was obtained consequent upon the revoca
tion of the mandatory supervision. Such a warrant
was, however, not necessary because the respond
ent was already confined in the penitentiary, and it
was conceded by counsel for the appellant that, for
purposes of his submission, September 3, 1974, the
date of revocation, rather than January 13, 1975 is
the relevant date. It was the appellant's submission
that the respondent was not entitled to statutory
remission in respect of the time spent in custody
under suspension from July 13, 1974 to September
3, 1974. The respondent's position, on the other
6 In re Hanna (a decision of the Ontario Court of Appeal
rendered on August 13, 1975 and as yet unreported).
hand, was that, on a proper construction of the
relevant statutory provisions, he was entitled to
credit for statutory remission for this period.
During a period of suspension of parole or of
mandatory supervision, the inmate concerned
would in all probability be confined, in the usual
case, in a local gaol or in some other place of
confinement other than the penitentiary to which
he is ultimately recommitted on revocation. The
term for which he is being recommitted would thus
be fixed prior to his return. And it is in relation to
the period so computed under subsection 20(1) of
the Parole Act that he is, in my view, to be
credited with statutory remission upon being
received back into the penitentiary. It seems to me
that, as a practical matter, the fact that an inmate
may happen to have been held in custody, during
the period of suspension, in the very penitentiary
to which he would otherwise have been recommit-
ted, should not make a difference in the credit he
receives by way of statutory remission. In such a
case, subsection 22(1) of the Penitentiary Act
should be construed as requiring the statutory
remission to be credited as of the date of revoca
tion, having in mind that when the inmate was
actually received in the penitentiary on suspension,
he had not been committed for a fixed term any
more than would be an inmate committed to a
local gaol on suspension.' The purposes of subsec
tion 22(1) of the Penitentiary Act, when read in
conjunction with subsection 20(1) of the Parole
Act, seem to me to be served by requiring the
statutory remission to be credited as of the time of
revocation. Accordingly, in this case, this appears
to be the appropriate way in which statutory
remission should be credited in respect of the
respondent.
A good deal was made in argument of the
possible effect of subsection 16(5) of the Parole
Act. It was argued that, while the respondent was
in custody during his suspension, he was deemed to
be serving his original sentence, which was a sen
tence for a fixed term. It is true that, by virtue of
subsection 16(5), the original sentence is treated as
Attorney General of Canada v. Quocksister (a decision of
the British Columbia Court of Appeal rendered July 22, 1975,
as yet unreported).
if it is being served and thus satisfied, though a
parolee or a mandatory supervisee is in custody,
not by virtue of that sentence, but on suspension,
and accordingly the detainee is credited with the
time served in custody if the suspension is can
celled. 1f, on the other hand, mandatory supervi
sion is revoked, subsection 20(1) of the Parole Act
becomes operative; time spent in custody is not
disregarded but is taken into consideration by
being credited against the portion of the term,
including remission time, that remained unexpired
at the time of release for the purpose of calculating
the term to be served on recommittal. For purposes
of statutory remission, the revocation marks a new
point of departure.
Earned remission is not in issue in this case. I
would, however, simply refer to section 24 of the
Penitentiary Act in respect of the crediting of
earned remission in a case such as this.
I would allow the appeal and set aside the order
made by the learned Trial Judge. I would substi
tute a declaration that September 3, 1974 is the
date upon which the respondent was committed to
penitentiary for a fixed term for purposes of sub
section 22(1) of the Penitentiary Act with respect
to the computation of the balance of the respond
ent's sentence.
Counsel for the appellant indicated his aware
ness of the difficulty of the points involved and the
desire of the Penitentiary authorities for clarifica
tion. For this reason, I would not award costs on
this appeal, nor would I disturb the decision of the
learned Trial Judge as to costs.
* * *
URIE J.: I concur.
* * *
LE DAIN J.: I concur.
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.