T-4425-74
In re application for declaratory relief directed to
the Commissioner of Penitentiaries and in re
Robert Ernest Zong (Applicant)
Trial Division Addy J.—Halifax, January 14 and
February 11, 1975.
Crown—Original sentence in penitentiary—Release on day
parole—Committing indictable offence—Parole revoked—
Sentence to penitentiary—Calculation of term—Parole Act,
R.S.C. 1970, c. P-2, ss. 2, 10, 13, 16-21—Penitentiary Act,
R.S.C. 1970, c. P-6, s. 24(2)—Federal Court Act, s. 18(2).
The applicant, serving a penitentiary term, was released on
day parole January 27, 1971. He committed the indictable
offence of assault causing bodily harm on February 3, within
the period of his day parole, which was terminated on February
17, 1971. He was convicted of the offence on March 26, 1971,
and returned to penitentiary in accordance with his sentence. A
warrant forfeiting his parole was issued on July 8, 1971.
Claiming that the Commissioner of Penitentiaries, through his
agents, failed to calculate correctly the term to be served, the
applicant sought declaratory relief rectifying the calculation.
Held, rejecting the applicant's submissions, the number of
days remaining to be served should be calculated on the basis
that there was no distinction between a day parolee and a
general parolee. The conviction of March 26, 1971, wiped out
the credits for statutory remission, as well as for earned remis
sion, subject to the possibility of the applicant being re-credited
with the earned remission to which he had been entitled before
his release on day parole. This followed the provisions of section
24(2) of the Penitentiary Act, which were merely permissive
and not mandatory on the Commissioner. The total time re
maining to be served should be calculated in accordance with
section 21 of the Parole Act, on the basis that no credit
whatsoever was to be allowed for any time served by the
applicant while on day parole, from his release on January 27,
1971, to the time at which he was taken back into custody on
February 27, 1971.
Marcotte v. Deputy Attorney General of Canada (1975)
19 C.C.C. (2d) 257, distinguished. Howarth v. National
Parole Board (1975) 18 C.C.C. (2d) 385, discussed.
Attorney General of Canada v. Pomerleau (unreported,
May 30, 1972) (Que. C.A.); Attorney General of Canada
v. Hamilton (unreported, June 13, 1965) (Ont. C.A.); In
re Davidson (unreported, December 28, 1974) (B.C. C.A.)
and R. v. Hales (1975) 18 C.C.C. (2d) 240, referred to.
APPLICATION.
COUNSEL:
P. J. Harvison for applicant.
H. Epstein for respondent.
SOLICITORS:
P. J. Harvison, Sackville, N.B., for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
ADDY J.: The applicant, in the present case, was
convicted of rape and sentenced on the 13th of
October 1966 to a term of imprisonment of ten
years. He was subsequently released on day parole
on the 27th of January 1971 and this parole was
terminated on the 17th of February 1971. He was
subsequently convicted on the 26th of March 1971
of the offence of assault causing bodily harm, the
offence having been committed on the 3rd of
February 1971 prior to the date of termination of
the applicant's day parole. A warrant of forfeiture
of parole was subsequently issued against him.
The applicant claims that the Commissioner of
Penitentiaries, through his agents, failed to cor
rectly calculate the term of imprisonment of the
applicant and is applying to this Court for a
declaratory order to rectify the situation.
The chief point of contention is whether, pursu
ant to section 21(1) of the Parole Act', a person
whose parole is forfeited, pursuant to section 17(1)
of that Act, is deprived of his credit for statutory
remission. The relevant portions of the above-
referred to section 21(1) of the Parole Act read 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 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, and
1 R.S.C. 1970, c. P-2.
(b) the term, if any, to which he is sentenced upon convic
tion for the indictable offence,
Section 17(1) of the Parole 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 applicant relies mainly on the recent
Supreme Court of Canada decision of Marcotte v.
Deputy Attorney General of Canada (1975) 19
C.C.C. (2d) 257.
In that case the issue was whether, pursuant to
what was then section 16(1) of the Parole Act'
(now amended and re-enacted as section 20(1) of
the Parole Act, R.S.C. 1970, c. P-2), when an
inmate's parole had been revoked he would lose his
entitlement to statutory remission standing to his
credit at the time of his release on parole. By a
majority decision delivered by Dickson J., and
reversing a majority decision of the Court of
Appeal of Ontario, it was decided that the inmate
would not lose such entitlement on revocation of
parole.
Although, as stated previously, the Marcotte
decision, supra, dealt with the consequences of a
revocation of parole provided for in what was
section 16(1) of the Parole Act 1958, the same
results would necessarily follow, I believe in the
case of forfeiture of parole, since the wording of
the relevant portions of what was then section
17(1) of the Parole Act 1958, dealing with forfeit
ure, was identical to that of section 16(1) con
sidered by the Court at the time. (To avoid confu
sion it would be useful at this stage to point out
that section 17 (1) of the Parole Act 1970, which I
have quoted in its entirety at the beginning of
these reasons, is not to be confused with section
17(1) of the Parole Act 1958, the last-mentioned
section being the predecessor of what is now sec-
2 S.C. 1958, c. 38.
tion 21(1) of the Parole Act 1970 which I have
also quoted at the beginning of these reasons.)
The Marcotte case, in effect, decided that the
words "any period of remission," in section 16(1)
of the Parole Act 1958, were to be taken as
including only earned remission and as excluding
statutory remission. In other words, on forfeiture
of parole only the earned remission was lost and
not the statutory remission credits.
However, Dickson J., in whose reasons the Chief
Justice as well as Spence and Beetz JJ. concurred,
very carefully stated in the opening paragraph of
his reasons [at page 258]:
The resolution of the issue depends on the proper construction
as of that date (the legislation having since been amended) ....
The date to which the learned Judge was referring
in his judgment was the 29th of August 1968. It is
also of interest to note that Pigeon J., who con
curred in the result, 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. [The underlining is mine.]
At that time, section 16(1) of the Parole Act
1958 merely referred to:
... his original term of imprisonment that remained unexpired
at the time his parole was granted.
It did not, after the word "granted," contain, as
now does section 21(1) (a), the words:
... including any period of remission, including earned remis
sion, then standing to his credit ...
This change was brought about subsequently by
the Criminal Law Amendment Act, 1968-69 3
whereby that change and many other substantive
changes were made to the Parole Act 1958. These
amendments took effect from the 26th of August
1969. Sections 16 and 17 (now sections 20 and 21)
were repealed and re-enacted. In section 16(1) of
the Parole Act 1958 as re-enacted (now 20(1))
3 S.C. 1968-69, c. 38.
dealing with the recommitment on revocation of
parole, as well as in section 17(1)(a) of the 1958
Act as re-enacted (now 21(1) (a)) dealing with
forfeiture of parole, the important words "...
including any period of remission, including
earned remission ..." were added when referring
to an unexpired term of imprisonment remaining
to be served. In the 1970 revision, sections 16 and
17, as above re-enacted, remain unchanged and
are simply re-numbered 20 and 21 respectively.
When Parliament added after the words "any
period of remission" the expression "including
earned remission," the whole line of reasoning in
the Marcotte case, supra, became purely academic
and historical in so far as the Parole Act is con
cerned since the word "including" in the revised
section must necessarily imply that there is some
thing else with which the earned remission is to be
included. One cannot include something unless
there is something else there with which it is to be
included. It being abundantly clear that there pres
ently exist only two types of remission that is,
earned remission and statutory remission, it fol
lows that, where section 21(1) of the Parole Act
1970 mentions that "earned remission" is included
with any other period of remission, the plain and
ordinary meaning must be that it is necessarily
included with statutory remission as it cannot be
taken to be included with anything else. This is the
plain and ordinary meaning of the added words in
the context of the statute. In his decision, at page 6
of the Marcotte case, supra, Dickson J. stated [at
page 2611:
... nothing in these sections affects the plain and ordinary
meaning of the words used in s. 16(1) of the Parole Act (the
earlier counterpart of which was s. 9(1) of the Ticket of Leave
Act).
Counsel for the applicant argues that the
expression, as worded in the amended section,
might well make sense if one considers that Parlia
ment was also contemplating the possibility of an
additional type of remission, which it might wish
to provide for the future, for instance, a remission
for the donation of blood such as is presently in
effect in the United States, and that as a result the
expression should not be considered with only the
two present types of remission in mind. I cannot
subscribe to this argument for, unless there be a
clear and express provision that Parliament so
intended it, a statute must not be interpreted in the
light of the possibility or of even the probability of
some future enactment, but only in the light of the
law as it exists at the time of the enactment of the
statute under consideration.
The only other argument available to justify the
amendment would be that Parliament might have
been contemplating the effect of a Royal Procla
mation of amnesty which is at times granted by
the Crown on special occasions. In the first place,
a remission of sentence granted under a Royal
Proclamation of amnesty is of an entirely different
nature than statutory or earned remissions, which
both originate from Acts of Parliament, while a
Queen's amnesty flows from a Royal Prerogative. I
cannot subscribe to the argument that Parliament
by amending the Parole Act did so for the sole
purpose of limiting or imposing conditions upon
the exercise of any possible Royal Prerogative
granting amnesty which the Crown might wish to
exercise at some future time, as it has for many
centuries in the past.
Generally speaking, in order to limit in any way
or to impose a statutory condition on an existing
Royal Prerogative, such as the right to grant par
dons or amnesties to prisoners, Parliament would
have to express its intention of doing so clearly and
unequivocally in the bill purporting to do so; when
giving Royal Assent to a bill in order to give it
force of law, the Crown will not be deemed to have
assented to any limitations of its existing powers
unless the Act clearly purports to do so. Any
general Royal Proclamation of amnesty granted by
the Crown would normally be expected to contain
in full the conditions and the nature of the amnes
ty as well as the persons or class of persons to
whom it might apply. Should any of the terms of
the amnesty be contrary to or purport to override
any statute or law providing for imprisonment or
incarceration then, the terms of the amnesty would
normally prevail.
As to recent consideration given to the effect of
section 20(1), as it now exists, as opposed to its
predecessor section considered in the Marcotte
case, supra, Beetz J., in agreeing with the opinion
of Pigeon J. who delivered the judgment on behalf
of the majority of the Supreme Court of Canada in
the recent case of Howarth v. National Parole
Board (1975) 18 C.C.C. (2d) 385, stated [at page
400-401]:
I agree with Mr. Justice Pigeon.
It may be unfortunate that, under section 20(1) of the Parole
Act, R.S.C. 1970, c. P-2 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.
The above passage might well be considered
obiter dicta in the Howarth decision, supra, but it
is rather important obiter since Beetz J. also took
part in the Marcotte decision, supra, and associat
ed himself with the reservation of Dickson J. under
which the Marcotte decision was carefully
expressed to be limited to the law on parole as it
existed on the 29th of August 1968 and did not
purport to deal with the law as it existed at the
time of the decision itself. Finally, it is important
to emphasize that the Marcotte case dealt with
revocation of parole by the Parole Board and not
with automatic forfeiture of parole due to the
commission of an indictable offence before the
complete sentence has been served.
On considering the amendments to the Peniten-
tiary Act 4 and to the Parole Act by the above-
mentioned Criminal Law Amendment Act, 1968-
69, there now seems to be a direct conflict between
the text of section 24(2) of the Penitentiary Act
and section 21 of the Parole Act, both of which
were amended by the same Act in 1969.
Section 24(2) of the Penitentiary Act reads as
follows:
(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.
On reading this text, one would conclude that,
since "shall" is normally mandatory, the inmate on
recommittal to penitentiary must be credited with
earned remission equal to the earned remission
that stood to his credit at the time his parole was
forfeited. This would seem to contradict directly
the provision of section 21(1) of the Parole Act
where it is stated that he must re-serve any period
of remission including earned remission.
However, when the French text of section 24(2)
of the Penitentiary Act is examined, we find that
the permissive word peut (may) is used and not the
mandatory word doit. When section 24(2) is con
sidered in the light of the French text, there
remains no conflict between section 24 of the
Penitentiary Act and section 21 of the Parole Act.
I therefore conclude that the true meaning of
section 24(2) of the Penitentiary Act is that the
inmate, upon being recommitted, in addition to the
remission he may subsequently earn under section
24(1), may be credited with earned remission up to
but not exceeding the number of days which origi
nally stood to his credit at the time the parole was
revoked.
4 R.S.C. 1970, c. P-6.
Therefore, I must come to the conclusion that
since the amendments introduced by the Criminal
Law Amendment Act, 1968-69, when an inmate
forfeits parole, that person also forfeits not only
any earned remission but any statutory remission
standing to his credit.
Another issue arises out of the fact that the
applicant claims that he was committed to jail on
the basis of what is a patently defective warrant of
committal. It is evident from the facts, however,
that the applicant is being held because he was
convicted of an indictable offence and also by
reason of a previous offence committed by him.
The warrant of forfeiture of the 8th of July 1971,
of which the applicant complained, was super
fluous since he was already legally in custody for
another valid reason, i.e., he was being held under
a warrant of conviction, and it was unnecessary to
follow the procedures of apprehension of an
inmate provided for in sections 18 and 19 of the
Parole Act under which the defective warrant was
purportedly issued. This point was specifically
dealt with in an unreported unanimous decision of
the Court of Appeal for the Province of Quebec
entitled Attorney General of Canada v. Pomerleau
(the decision was rendered on the 30th of May,
1972).
In addition, I do not subscribe to the argument
advanced by counsel for the applicant that there is
on the convicting magistrate or judge, or on the
judge before whom a person is brought on a
warrant of the Parole Board, any obligation, upon
the issuing of a warrant of committal or subse
quently, to calculate the number of days remaining
to be served when a person who was on parole is
recommitted to prison. Gale C.J.O., in delivering
orally the unanimous decision of the Court of
Appeal of Ontario in an unreported case of Attor
ney General of Canada v. Hamilton (decision
dated the 13th of June 1965), whereby that Court
reversed an order of habeas corpus granted by
Hartt J., at pages 3 and 4 stated:
We are in agreement that the judge before whom a person is
brought on a warrant of the Board is simply to ascertain the
validity of the Board's warrant and the identity of the person to
whom it is addressed. Having done so the judge then should
simply recommit the respondent to the institution to which he
was committed in the first instance. It is not part of his
responsibility under the Act to decide how much time must
thereafter be served by the person involved (and in going on to
do so he does not exercise a judicial function). That is to be
determined under the provisions of the Parole Act by those who
administer the Act.
The applicant contends that, while he was on a
day parole, he is to be credited with the time spent
on day parole and he is also to be credited with
whatever statutory remission or earned remission
might be attributed to the time spent on day parole
even though this might not apply to a general
parolee. In order to better understand the meaning
of the sections which apply to this issue, it is useful
to consider some of the differences between "day
parole" and "general parole."
Although day parole may be terminated by and
at the discretion of any person named by the
Board (section 10(2)), there is no such provision
for terminating general parole. General parole can
be temporarily suspended by any member of the
Board, or by any person named by the Board, but
such suspension must be justified by that person
being satisfied that it is desirable in order to
prevent a breach of the peace or for the rehabilita
tion of the inmate or for protection of society (see
section 16(1)), and, after such suspension, the
matter must be referred to the Board itself on
whom there rests an obligation to review the case
and then either to cancel the suspension or revoke
the parole. The net effect is that a general parole
cannot be permanently interrupted except by the
Board itself while a day parole may be terminated
at any time at the discretion of any person author
ized by the Board. An inmate can be discharged
by the Board from general parole but not from day
parole (refer section 10(1)(d)).
As to the grounds for ending parole, in the case
of day parole, it is at the discretion of the Board or
a person named by the Board while in the case of a
general parole a specific cause must be shown and
an inquiry held by the Board.
Under section 13(1), the term of imprisonment
of a paroled inmate shall be deemed to continue in
force until the parole is revoked, in the case of day
parolee, the term of imprisonment shall be deemed
to continue in a place of imprisonment from which
he was released. The only distinction with regard
to the effect of serving time on parole seems to be
that, in the case of a general parolee, the term of
imprisonment is deemed to continue generally
without any specific place being named and in the
case of a day parolee there is added the notion of
place where the term of imprisonment is deemed
to be continuing. In both cases, the parolees are
deemed to be continuing to serve their terms of
imprisonment.
In the light of the above distinctions, one may
now turn to the specific issue raised by the appli
cant, namely, whether a paroled inmate who is,
whilst on day parole, convicted of an indictable
offence punishable by imprisonment for a term of
two years or more (section 17(1)), forfeits his
earned remission and statutory remission, as in the
case of an inmate on general parole, and also loses
credit for the term spent on day parole, depends
entirely on the interpretation of the words
"parole" and "paroled inmate" as used in sections
17(1) and 20(1). In the interpretation section of
the Parole Act, namely section 2, "day parole,"
"parole" and "paroled inmate" are defined as
follows:
2. In this Act
"day parole" means parole the terms and conditions of which
require the inmate to whom it is granted to return to prison
from time to time during the duration of such parole or to
return to prison after a specified period;
"parole" means authority granted under this Act to an inmate
to be at large during his term of imprisonment;
"paroled inmate" means a person to whom parole has been
granted.
From the above definitions, I must therefore
conclude that the term "parole" in the Parole Act
means both "general parole" and the "day parole"
unless the contrary is either expressed or implied
in the particular section under consideration.
Refer to the unanimous decision of the Court of
Appeal of British Columbia, in the as yet
unreported case of In re Davidson (the decision
being dated the 28th of December 1974).
On a simple reading of section 17(1), I can see
no reason whatsoever why the word "parole" or
the words "paroled inmate" should not be taken to
include "day parole." It would be incongruous
indeed if a person, who is on general parole and
commits an indictable offence punishable for a
term of two years or more, would forfeit his parole
while a person who is on day parole and commits
the same offence would not. In any event, if sec
tion 17(1) applied merely to general parole the
forfeiture would relate back to the date on which
the offence was committed and the paroled inmate
would lose the benefit of the term of imprisonment
which he had been deemed to have been undergo
ing under section 13(1), while a day parolee would
not lose the benefit of a term of imprisonment
which he has been deemed to have been undergo
ing. Furthermore, on the plain reading of section
17(1), I can see no reason why the meaning of "a
person to whom a parole has been granted," as
specifically provided for in section 2 of the Act,
should not be attributed to the words "paroled
inmate" or conversely, there appears to be no
reason why in reading section 17(1), either by
itself or in the context of the other sections of the
Parole Act or of the Penitentiary Act, the words
should necessarily be taken to exclude day
parolees, contrary to the general definition
attributed to those words by section 2 of the
Parole Act. If forfeiture is an automatic penalty
applicable to a general parolee whose parole
cannot, unless a criminal office is committed, be
revoked or terminated, except by the Board and/or
for a specific reason, there is no reason that I can
see why a day parolee, whose parole is much more
tenuous and can be terminated at the discretion of
a person nominated by the Board, should not be
equally subject to forfeiture on the commission of
the same criminal offence.
If forfeiture applies to both types of parolee,
then there can be no reason why section 21, which
provides for loss of remission, should not be appli
cable in full against the day parolee as well as a
general parolee. When a general parolee, by virtue
of section 17(1), forfeits his parole, it is clear that
under section 21(1) he loses not only his statutory
remission and his earned remission but he must
re-serve that portion of the term of his imprison
ment which remained unexpired at the time his
parole is granted and which under section 13(1) he
is otherwise deemed to have served. In other
words, the term of imprisonment which is deemed
to have been served whilst on parole is cancelled
out and he must re-serve the portion of the term
that remains unexpired at the time his parole was
granted (refer section 21(1)(a)). He is, in effect,
serving a portion of his term of imprisonment
twice; this is clearly stipulated in the section.
There can be no argument therefore that there is
discrimination against the day parolee who must
do exactly the same thing in the event of his
committing a criminal offence as provided for in
section 17(1). Altogether apart, however, from
these particular considerations is the fact that
section 21(1) opens with the following words:
"When any parole is forfeited by conviction .... "
The words "any parole" would have no meaning
whatsoever, in my view, unless it meant both types
of parole mentioned in the Act. I therefore con
clude that as to loss of remission a day parolee is in
exactly the same position as a general parolee
when he commits an offence punishable for a term
of two years or more whilst on parole. This was the
view unanimously adopted by the Court of Appeal
of British Columbia in the above-mentioned
Davidson case. It is true that the Court of Appeal
of Manitoba in Regina v. Hales' came to a differ
ent view when considering section 20(1) of the
Parole Act, but this section deals with termination
of a day parole and also with revocation of general
parole by action of the Board and does not deal
with the question of automatic statutory forfeiture
of parole privileges and of remission, by reason of
the commission of an indictable offence. It seems
to be quite logical that on mere termination of his
day parole the inmate should not thereby lose his
statutory remission since day parole can be ter
minated at any time at the discretion of the person
authorized to do so. The Court of Appeal of
British Columbia considered the Hales case
(supra) and carefully made the distinction be
tween termination of a day parole under section 20
and forfeiture of same under section 21.
Counsel for the applicant also argued that the
applicant's day parole having been terminated on
the 17th day of February 1971 and the applicant
having been convicted only subsequently, that is on
the 26th of March, 1971, the day parole could not
be forfeited by reason of the conviction since one
cannot forfeit that which has been terminated and
is therefore no longer in existence.
However, the offence of which the applicant was
convicted was committed on the 3rd day of Febru-
ary 1971 and the closing words of section 17(1),
i.e., "... such forfeiture shall be deemed to have
taken place on the day on which the offence was
committed . ," constitute, in my view, a conclu
sive answer to this argument. Statutorily, the
(1975) 18 C.C.C. (2d) 240.
parole must therefore be deemed to have been
retroactively forfeited before it was terminated
since the date of the commission of the new
offence preceded the date of termination of the
parole.
A question was also raised as to whether the
applicant is entitled to credit for the eight days
during which he remained on day parole between
the time he was released on day parole on the 27th
of January and the time that the subsequent
offence was committed, namely on the 3rd day of
February which, incidentally, is also the time
when, pursuant to section 17(1), his parole is
deemed to have been forfeited.
Section 21(1) of the Parole Act provides that,
when the parole is forfeited by conviction for an
indictable offence, the portion of the term which
remains "unexpired at the time his parole was
granted" is to be added to the sentence. On the
other hand, section 13 (1) provides that, as long as
the parole remains unrevoked and unforfeited, he
shall be deemed in the case of a day parole to be
continuing to serve his term of imprisonment in
the place of confinement in which he was released
on parole. Section 13(1) reads as follows:
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 according to
law, and, in the case of day parole, the paroled inmate shall be
deemed to be continuing to serve his term of imprisonment in
the place of confinement from which he was released on such
parole.
At first blush, it might seem difficult to recon
cile both these provisions. On further consider
ation, however, it seems clear that the purpose of
section 13 (1) is to provide for the effects of a
parole: it provides for an alternative method of
serving a sentence; the section states that whilst a
parole remains in effect it is equivalent to serving a
regular period of imprisonment. However, section
21(1) provides severe penalties for a parolee who,
whilst on parole, commits a criminal offence and
whose parole is thereby forfeited by virtue of
section 17(1); it cancels out all previous remis
sions, retroactively cancels out the term served on
parole and clearly and specifically imposes on the
inmate the obligation of serving the sentence as it
existed and "as of the time his parole was
granted."
It is true that, when a penal statute is ambig
uous, the interpretation should be adopted which is
the most favourable to the person who is subject to
the statute. But, this principle is subordinate to the
principle that where two sections of a statute
appear to conflict then, wherever possible, an
interpretation must be adopted which would give
effect to all of the words of both sections rather
than an interpretation which would oblige one to
ignore certain words. If the word "while" in sec
tion 13 (1) is considered as including the concept of
condition as well as of time such as one might find
in the expression "as long as and providing that"
then full force and effect can be given to all of the
words of section 21. On the other hand, if the strict
notion of time is attributed to the word "while" in
section 13(1), and if as a result section 13(1) is
interpreted as meaning that the paroled inmate
would have an irrevocable right to count as time
served in imprisonment all time spent on parole
previous to the time that the parole is forfeited,
then no meaning whatsoever, in my view, can be
given to the words ". .. that remained unexpired at
the time his parole was granted ..." found in
section 21(1) (a).
I therefore conclude that no credit can be
afforded the applicant for the eight days which he
served after a parole was granted to him until the
time he committed the offence. This was the con
clusion to which Craig J., the Trial Judge in the
Davidson case above referred to, arrived at. His
view was upheld by the decision of the Court of
Appeal of British Columbia.
There seems to have been some difference, even
among the prison authorities, as to the method of
calculating the time remaining to be served. The
time should be calculated on the basis of the
following general principles. The conviction on the
22nd of March wiped out the credits for statutory
remissions as well as for earned remissions of the
applicant subject to the possibility of the applicant
being re-credited with the earned remission to
which he had formerly been entitled before his
release on parole, as provided for in section 24(2)
of the Penitentiary Act, the said section being
merely permissive and not mandatory on the Com
missioner. The total time remaining to be served
should be calculated in accordance with section 21
of the Parole Act on the basis that no credit
whatsoever is to be allowed for any time served by
the applicant whilst on day parole from the date of
his release on day parole, that is from the 27th of
January 1971 until the time he was taken back
into custody, that is on the 27th of February 1971.
In view of the doubt as to the meaning to be
attributed to the sections of the Parole Act under
consideration and the fact that there was some
discrepancy in the calculations of the prison
authorities themselves, I shall not award any costs,
although the applicant was unsuccessful through
out in his attempted interpretations of the Act.
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.