A-129-75
Robert Ernest Zong (Appellant)
v.
The Commissioner of Penitentiaries (Respondent)
Court of Appeal, Urie, Ryan and Le Damn JJ.—
Ottawa, October 17 and December 10, 1975.
Crown—Original sentence in penitentiary—Release on day
parole—Committing indictable offence—Parole revoked—
Sentence to penitentiary—Calculation of term—Trial Division
rejecting submissions—Appeal—Parole Act, R.S.C. 1970, c.
P-2, ss. 2, 10, 13, 15, 21—Penitentiary Act, R.S.C. 1970, c.
P-6, s. 22—Criminal Law Amendment Act, S.C. 1968-69, c.
38, ss. 101, 120—Criminal Code, ss. 11, 649(3).
The appellant, serving a penitentiary term, was released on
day parole on January 27, 1971. He committed an indictable
offence on February 3, within the period of his day parole,
which was terminated on February 17, 1971. He was convicted
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 Penitentiar
ies, through his agents, failed to calculate correctly the term to
be served, appellant sought declaratory relief rectifying the
calculation. The Court found [[1975] F.C. 430] that, on for
feiture of his day parole, appellant lost all statutory and earned
remission standing to his credit, as well as all credit for time
served, including statutory and earned remission, from the date
of such release until his parole was terminated. Issues raised in
this appeal are (1) whether the provisions of the Parole Act
respecting forfeiture entail loss of statutory as well as earned
remission; (2) whether such provisions apply to day parole; (3)
whether they apply to a person who was originally sentenced
and received into penitentiary before they came into effect but
was released on parole and committed the offence afterwards.
Held, the appeal is dismissed. (1) Section 21(1) of the Parole
Act provides for loss of statutory as well as earned remission.
(2) It has been held that the forfeiture provisions apply to day
parole; the problem lies in section 21(1)(d), which provides for
credit for time spent in custody by reason of suspension or
revocation before the conviction resulting in forfeiture, but
makes no such provision for time spent in custody following
termination of day parole. While the omission in section
21(1) (d) of credit for time spent in custody following termina
tion of day parole is serious, if section 21 is to apply to day
parole, there seems no plausible reason why Parliament should
regard the commission of an offence as warranting forfeiture in
the case of general parole, but not day parole. It cannot be said
that the omission in section 21(1)(d) constitutes a reasonable
uncertainty as to legislative intention, the benefit of which must
be given to appellant. (3) It was the intention of Parliament
that from the date it came into force, the new provision
respecting forfeiture of parole was to operate with respect to all
persons paroled on or after that date, regardless of when they
were originally sent and received into penitentiary.
There is nothing in the Canadian Bill of Rights that imparts
additional force to common law rules of statutory construction
embodied in the presumption against retrospective operation
and interference with vested rights, nor anything that affords
an absolute prohibition against such operation or interference.
Nor are the forfeiture provisions otherwise in conflict with the
individual's right not to be deprived of liberty except by due
process, and the other provisions in the Canadian Bill of Rights
alluded to provide no basis for an attack on the forfeiture
provisions in the Parole Act. Finally, as to section 649(3) of the
Criminal Code, it must, along with section 13(1) of the Parole
Act, be read subject to section 21(1) of the Parole Act.
Ex parte Davidson (1975) 22 C.C.C. (2d) 122 and Regina
v. Dwyer [1975] 4 W.W.R. 54, agreed with. Regina v.
Hales (1975) 18 C.C.C. (2d) 240, disagreed with. Mar-
cotte v. Deputy Attorney General of Canada (1975) 19
C.C.C. (2d) 257, distinguished. Spooner Oils Limited v.
The Turner Valley Gas Conservation Board [1933] S.C.R.
629; Re Athlumney [1898] 2 Q.B. 547; Pardo v. Bingham
(1868-69) 4 L.R. Ch. App. 735 and Curr v. The Queen
[1972] S.C.R. 889, applied.
APPEAL.
COUNSEL:
P. Harvison for appellant.
P. Evraire for respondent.
SOLICITORS:
c/o Penitentiary Legal Services, Sackville,
N.B., for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This appeal is from a judgment of
the Trial Division rendered by Addy J. [[1975]
F.C. 430] upon an application for declaratory
relief with respect to the calculation of the term of
imprisonment to be served by the appellant follow
ing forfeiture of parole. The Court declared that
upon forfeiture of his day parole for having been
convicted of an indictable offence of the kind
described in section 17 of the Parole Act, R.S.C.
1970, c. P-2, the appellant lost all statutory and
earned remission which stood to his credit at the
time of his release on parole, as well as all credit
for time served, including statutory and earned
remission, from the date of such release until his
parole was terminated.
The appellant was convicted of rape and sen
tenced on October 13, 1966 to a term of imprison
ment of ten years. He was released on day parole
on January 27, 1971, and his parole was terminat
ed on February 17, 1971. He was convicted on
March 26, 1971 of the offence of assault causing
bodily harm, the offence having been committed
on February 3, 1971. A warrant of forfeiture of
parole was issued against him, and the term of
imprisonment to be served by him upon recommit-
ment was calculated so as to exclude credit for (a)
the statutory remission to which he was entitled at
the time of his release on parole, (b) the time
served while on parole, and (c) the time served
between the termination of his parole and his
conviction of the offence resulting in forfeiture.
The issues raised on this appeal are the follow
ing: whether the provisions of the Parole Act
respecting forfeiture of parole entail the loss of
statutory remission as well as earned remission;
whether such provisions apply to day parole as well
as to general parole; and whether such provisions
apply to a person who, like the appellant, was
originally sentenced and received into the peniten
tiary before they came into force but was released
on parole and committed the offence which result
ed in forfeiture after they came into force.
The provisions of the Parole Act respecting
forfeiture of parole that must be considered are
sections 17(1) and 21(1), which read as follows:
17. (I) 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.
21. (I) 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.
(b) the term, if any, to which he is sentenced upon conviction
for the indictable offence, and
(c) any time he spent at large after the sentence for the
indictable offence is imposed except pursuant to parole
granted to him after such sentence is imposed,
minus the aggregate of
(d) any time before conviction for the indictable offence
when the parole so forfeited was suspended or revoked and he
was in custody by virtue of such suspension or revocation,
and
(e) any time he spent in custody after conviction for the
indictable offence and before the sentence for the indictable
offence is imposed.
Section 2 of the Act defines "day parole",
"parole" and "paroled inmate" 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.
The right to statutory remission is provided for
by section 22 of the Penitentiary Act, R.S.C. 1970,
c. P-6, which in the version that applied when the
appellant was received into penitentiary following
his sentence for rape (S.C. 1960-61, c. 53), read in
part as follows:
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.
(3) Every inmate who, having been credited with remission,
pursuant to subsection (1) or (2), is convicted in disciplinary
court of any disciplinary offence is liable to forfeit, in whole or
in part, the statutory remission that remains to his credit, but
no such forfeiture of more than thirty days shall be valid
without the concurrence of the Commissioner, nor more than
ninety days without the concurrence of the Minister.
(4) Every inmate who is convicted by a criminal court of the
offence of escape or attempt to escape forthwith forfeits three-
quarters of the statutory remission standing to his credit at the
time that offence was committed.
The first question does not appear to present any
real difficulty. Section 21(1) does not refer to
statutory remission by name but there can be no
doubt that the section provides for the loss of
statutory remission as well as earned remission.
The words "including any period of remission,
including earned remission" indicate that the sec
tion contemplates some form of remission other
than earned remission, and the only other existing
form of remission, and thus the only one that could
conceivably be contemplated, is statutory remis
sion. I am, therefore, in agreement with the con
clusion of the learned Trial Judge on this issue.
As to the second question, it has been held that
the provisions respecting forfeiture apply to day
parole as well as general parole. Ex parte David-
son, judgment of the British Columbia Court of
Appeal, (1975) 22 C.C.C. (2d) 122; Ex parte
Kerr, judgment of the Court of Appeal for
Ontario, (1976) 24 C.C.C. (2d) 395. I am in
respectful agreement with the conclusion in these
cases, and with that of the learned Trial Judge on
this issue, but not, I must confess, without some
concern because of a point that does not appear to
have been touched on directly in these judgments.
That point is the difficulty, as I see it, created by
the terms of paragraph (d) of section 21(1) of the
Parole Act, which makes provision for credit for
time spent in custody by reason of a suspension or
revocation of parole before the conviction resulting
in forfeiture but makes no such provision for time
spent in custody following a termination of day
parole. The appellant argues from this omission
and the serious consequences that it can have for a
day parolee that Parliament could not have intend
ed that the provisions respecting forfeiture should
apply to day parole.
To appreciate this issue it is necessary to refer to
the decisions which have held that the provisions
of the Act respecting revocation, as distinct from
forfeiture, do not apply to day parole. This was the
conclusion of the Manitoba Court of Appeal in
Regina v. Hales (1975) 18 C.C.C. (2d) 240, and
of the Court of Appeal for Ontario in the case of
In re Carlson, judgment released April 24, 1975,
as yet unreported. In those cases the Courts agreed
that where the term "parole" is found in the Act it
means, unless the contrary appears expressly or
impliedly, both general parole and day parole, but
they concluded that in the case of the provisions
respecting revocation there was indication of a
contrary intention or at least of an ambiguity, the
benefit of which should be given to the inmate. In
the Hales case the Court reasoned that since sec
tion 10 of the Act made special provision for the
termination of day parole it impliedly excluded the
application of revocation to it. Reliance was also
placed on section 13 (1) of the Act which 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.
With reference to this section Matas J.A., deliv
ering the unanimous judgment of the Court, said
[at page 244]:
If the submission of Crown counsel were accepted, consisten
cy requires that a day parolee would be deprived of, not only
the period of original statutory remission, but also the time
spent at large. A day parolee, for example, who spent a few
hours of the day at large and the rest of the day in prison,
would be obliged to re-serve the full time of that period if there
were a revocation of his parole. That concept is contrary to s.
13 of the Act. Nor is the "deeming" provision of that section
overborne by s. 20.
This passage emphasizes the serious impact
which the application of section 20, respecting
revocation, would have on the day parolee. The
same consideration could be urged against the
application to him of section 21, respecting forfeit
ure. I cannot agree, however, with the particular
reliance, as I understand it, that appears to be
placed on section 13 in support of the conclusion.
On this point, I agree with what was said about
section 13 by the British Columbia Court of
Appeal in the Davidson case and by the learned
Trial Judge in the present case, which, while it was
directed to the relationship between section 13 and
section 21, is equally applicable to the relationship
between section 13 and section 20: that section 13
must be construed to mean that provided the
inmate's parole is not revoked or forfeited he is
deemed to be serving his term of imprisonment
while he is on parole, but upon revocation or
forfeiture he loses the benefit of this provision and
is required by the terms of section 20 or section 21,
as the case may be, to serve the portion of his term
of imprisonment that remained unexpired at the
time his parole was granted. As the learned Trial
Judge observed, this is the only way that effect can
be given to both provisions.
Be that as it may, Mackinnon J.A., delivering
the unanimous judgment of the Court of Appeal
for Ontario in the Carlson case, found in a com
parison of the terms of section 13 and section 20
what appears to be a somewhat different basis for
the conclusion that the intention to make section
20 applicable to day parole was not clear. He
reasoned that since the deeming provision of
section 13 appeared to indicate that recommitment
was not necessary upon termination of day parole,
the requirement in section 20 that the inmate be
"recommitted" upon revocation of his parole
resulted in an ambiguity as to whether section 20
was intended to apply to day parole, and the
benefit of that ambiguity should be given to the
inmate.
These then are the grounds on which the courts
have held that the provisions respecting revocation
are not applicable to day parole—the special provi
sion in section 10(2) for termination of day parole,
and the requirement of "recommitment" in section
20. One may well ask whether the omission in
paragraph (d) of section 21(1) of any provision for
credit for time spent in custody following termina
tion of day parole should not be of at least equal
weight in considering whether there is a sufficient
ly clear expression of the intention to make section
21 applicable to day parole. As I have said, this
issue is not dealt with directly in the judgments
that have held that section 21 applies to day
parole.
In the Davidson case, Seaton J.A., delivering the
unanimous judgment of the British Columbia
Court of Appeal, said with reference to the deci
sion in the Hales case [at pages 124-5]:
S. 10(2) provides for termination of day parole and, according
to the Hales decision, that is the equivalent of revocation. That
case is of little help when one is considering forfeiture because
forfeiture and revocation are different things. The former is
brought about by conviction for an indictable offence punish
able by imprisonment for a term of two years or more. The
latter is brought about by the board deciding in its discretion to
revoke the parole. Termination may be to day parole what
revocation is to other paroles but forfeiture may apply to both.
Concerning the terms of section 17 and section
21, he said [at page 125]:
I do not find ambiguity in s. 17(1). The section is applicable to
"a person who is ... a paroled inmate ...". The interpretation
section says what those words mean in a manner that includes a
person on day parole. The same words are used to describe
persons on day parole in s. 13(1), 10(2) and elsewhere. The
words "paroled inmate" must include a person on day parole.
There is nothing in the Act to indicate a contrary intention
when the words are used in s. 17 and there is no special
provision for dealing with persons on day parole who commit an
offence. I conclude that a day parole can be forfeited.
It is argued that forfeiture of a day parole does not have the
same result as forfeiture of another parole, but the Act will not
bear that interpretation. The scope of s. 21(1) is dictated by the
opening words "When any parole is forfeited ...", and there
are no grounds upon which those words can be read to mean
"any parole other than a day parole".
In the Kerr case [supra], Martin J.A., delivering
the judgment of the Court of Appeal for Ontario,
was content to rely on the judgment in the David-
son case and the judgment of the learned Trial
Judge in the present case as follows [at pages
396-7]:
Notwithstanding the very able argument presented to us, we
are all of the view that the provisions of ss. 17 and 21 of the
Parole Act do apply to day parole as well as general parole, and
that Lerner, J. was right in so holding. We are in agreement
with the unanimous judgment of the British Columbia Court of
Appeal in Ex p. Davidson (1974), 22 C.C.C. (2d) 122, [1975]
3 W.W.R. 606 (released December 20, 1974), and the judg
ment of Addy, J., of the Federal Court of Canada in Re Zong
and Commissioner of Penitentiaries (1975), 22 C.C.C. (2d)
553, [1975] F.C. 430 (released February 11, 1975) in this
respect.
There is no doubt that where the liberty of the
subject is involved the benefit of any uncertainty
as to the meaning of a statute must be given to the
person against whom it is to be applied. On this
point the appellant invokes in support of his argu
ments concerning the construction and application
of section 21 the recent statement of this principle
by Dickson J. of the Supreme Court of Canada in
Marcotte v. Deputy Attorney General of Canada
(1975) 19 C.C.C. (2d) 257, as follows [at page
262] :
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. If one is to be incarcerated, one
should at least know that some Act of Parliament requires it in
express terms, and not, at most, by implication.
The omission in section 21(1)(d) of credit for
time spent in custody following termination of day
parole is undoubtedly a serious one if section 21 is
to apply to day parole, and means that in some
cases the effects of forfeiture of parole will fall
with greater severity upon the day parolee than
upon the general parolee. Indeed it aggravates the
greater severity that otherwise exists for the reason
alluded to by Matas J.A. in the Hales case: that
during the period in which he is on day parole (and
for which he loses all credit upon forfeiture of
parole) the day parolee is likely to spend a consid
erable amount of time in prison. As the term "day
parole" implies and as the statutory definition of it
indicates the periods during which the inmate is at
large are more limited than in the case of general
parole, and, in fact, they alternate at short inter
vals with periods of imprisonment.
We are asked to conclude from these circum
stances that there is at least some doubt as to
whether Parliament intended that section 17 and
section 21 respecting forfeiture of parole should
apply to day parole. I am much impressed by the
argument based on the omission of any referénce
in section 21(1)(d) to time spent in custody follow
ing termination of day parole, but I cannot avoid
the conclusion that to accede to this argument
obliges one to accept a wholly improbable view of
Parliament's intention: that a day parolee should
be able to commit an indictable offence while on
parole without any of the consequences that would
result from forfeiture where the same offence is
committed by a general parolee. There seems to be
no plausible reason why the legislature should
regard such serious conduct as warranting the
consequences of forfeiture in the case of general
parole but not in the case of day parole. For this
reason, I cannot find that the omission in section
21(1)(d) constitutes a reasonable uncertainty as to
legislative intention of which the benefit must be
given to the appellant.
The essential distinction between revocation and
forfeiture, in so far as day parole is concerned, is
that revocation of general parole and termination
of day parole are essentially different bases for
bringing parole to an end, with an unqualified
discretion, in the case of termination, that does not
have to be exercised by the National Parole Board,
whereas in the case of forfeiture the basis is the
same for both kinds of parole: the commission
while on parole of an indictable offence punishable
by imprisonment for two years or more.
I turn now to the question of whether section
21(1) of the Parole Act should apply so as to cause
the loss of statutory remission to which an inmate
became entitled before the section came into force.
The appellant contends that such an application
would be contrary to the presumption that Parlia
ment does not intend a statute to operate retro
spectively, particularly where the effect would be
to destroy or impair a vested right, unless the
contrary is clearly indicated by express words or
necessary implication. The appellant contends fur
ther that such an application of the section would
be contrary to the Canadian Bill of Rights.
Section 21(1) was enacted in its present form by
chapter 31 (1st Supp.) of the Revised Statutes of
Canada 1970. By subsection 2(2) of the enacting
statute, the enactment was deemed to have come
into force on August 26, 1969. Thus section 21(1)
was the law in force with respect to forfeiture of
parole at the time the appellant was released on
day parole and at the time his parole was forfeited.
At the time he became entitled to statutory remis
sion upon being received into the penitentiary fol-
lowing his sentence for rape on October 13, 1966,
the provision that was in force with respect to the
effect of a forfeiture of parole was section 17(1) of
the Parole Act, S.C. 1958, c. 38, which read as
follows:
17. (1) When any parole is forfeited by conviction of an
indictable offence the paroled inmate shall undergo a term of
imprisonment equal to the portion of the term to which he was
originally sentenced that remained unexpired at the time his
parole was granted plus the term, if any to which he is
sentenced upon conviction for the offence.
It will be noted that the words used to indicate
the term of imprisonment to be served on forfeit
ure of parole were "the portion of the term to
which he was originally sentenced that remained
unexpired at the time his parole was granted", and
that they did not include the additional words that
are in the present section 21(1), "including any
period of remission, including earned remission,
then standing to his credit."
In the Marcotte case, supra, the Supreme Court
of Canada considered the effect on statutory
remission of the words, "the portion of his original
term of imprisonment that remained unexpired at
the time his parole was granted", in section 16(1)
of the Parole Act, S.C. 1958, c. 38, which provided
for the effect of a revocation of parole. The
majority of the Court held that these words did not
have the effect of causing the loss of statutory
remission to which the inmate had become entitled
under section 22 of the Penitentiary Act. The same
conclusion would necessarily apply to the construc
tion of the essentially equivalent words in section
17(1) of the Act of 1958. Dickson J., who deliv
ered the opinion with which a majority of the
Court concurred, held [at pages 259-260] that the
"credit of statutory remission upon entering peni
tentiary is a real and immediate entitlement" and
not a "deferred credit which does not accrue to the
inmate until such time as statutory remission,
earned remission and time served equal the length
of the sentence." He concluded that the credit for
statutory remission "must be taken into account in
computing the unexpired portion of the original
term of imprisonment", for purposes of section 16
of the Parole Act. He held that section 25 of the
Penitentiary Act, which provides that when an
inmate is granted parole his term of imprisonment
for all purposes of the Parole Act includes any
period of statutory remission standing to his credit
when he is released, did not apply to section 16(1)
of the Parole Act. He reasoned that the term of
imprisonment to be served by the inmate on
recommitment was not a purpose of the Parole Act
but a consequence of revocation, and that section
25 of the Penitentiary Act contemplated the pur
poses of the Parole Act while the inmate was on
parole.
The version of section 22 of the Penitentiary Act
that was considered in the Marcotte case is that
which applied when the appellant was received
into the penitentiary following his conviction of
rape in October 1966.
The appellant argues from this decision that
when he was released on parole he had a vested
right to the period of statutory remission to which
he had become entitled upon being received into
penitentiary, and that if section 21(1) of the
Parole Act applies so as to effect a forfeiture of
such remission it is operating retrospectively in so
far as such remission is concerned.
This question has been the subject of conflicting
decisions by other courts in Canada. In Regina v.
Dwyer [1975] 4 W.W.R. 54, Anderson J. of the
British Columbia Supreme Court held that to
apply section 21(1) to a case in which an inmate
was paroled after August 26, 1969 but became
entitled to statutory remission before that date
would be to give the section a retrospective
application which he was not prepared to give it.
After quoting from the judgment of Dickson J. in
the Marcotte case as to the nature of statutory
remission, he said [at pages 59-60]:
This "real and immediate entitlement" could only be taken
away from the applicant by giving retrospective effect to s.
21(1) of the Parole Act, which came into force on 26th August
1969....
When the applicant was sentenced he obtained an "immedi-
ate entitlement" to statutory remission, which was not, at that
time, subject to cancellation on revocation of parole or on
forfeiture of parole. In other words, on the date that the Parole
Act was amended (26th August 1969) and on the date that he
was released on parole (23rd April 1970) the applicant had
served a total of 1066 days out of his sentence of 1825 days as
follows:
Statutory remission 25 per cent 456 days
Served 610 days
1066 days
The only way in which it could be concluded that the
applicant must serve the 456 days to which he was already
entitled, and were, therefore, deemed to be served, would be to
apply s. 21(1) of the Parole Act to the applicant as a means of
sentencing the applicant to an additional term of 456 days for
having become in breach of his parole. He had already received
a credit of 456 days in accordance with Marcotte, supra, and
there was no means by which the credit could be taken away
from him except by imposing a new additional sentence of 456
days pursuant to s. 21(1) of the Parole Act ....
[And at page 66]:
1 cannot conceive that Parliament meant, in the light of the
provisions in the Bill of Rights, that the amendment of the
Parole Act should be construed retroactively so as to add a new
term of imprisonment to the term already served or deemed (in
accordance with Marcotte) to have been served.
To accede to the submission of counsel for the respondent
would be to take away a vested right ("a real and immediate
entitlement") contrary to the long line of authorities which
have held that legislation purporting to interfere with vested
rights shall be construed prospectively and not retrospectively.
The reasoning in Regina v. Dwyer has been
followed in judgments of the High Court of
Ontario: Ex parte Spice, judgment of Keith J.
(1976) 23 C.C.C. (2d) 141; In re Krachan, judg
ment of Cory J. (1976) 24 C.C.C. (2d) 114. The
latest decision to be brought to our attention is
that of the Manitoba Court of Appeal in the case
of In re Fraser, judgment delivered on July 23,
1975, as yet unreported. The Court had before it
the decisions mentioned above, as well as the
judgment from which the present appeal is
brought. The majority of the Court, Freedman
C.J.M. dissenting, held that the provisions of the
Parole Act respecting revocation and forfeiture of
parole which came into force on August 26, 1969
applied to a case of parole granted after that date
so as to affect a right to statutory remission to
which the inmate became entitled before that date.
Monnin J.A., who delivered the judgment of the
majority, said:
Surely, the state of the law and the conditions pertaining to
parole existing at the time of the granting and accepting of
parole, namely July 27th, 1973, when the prisoner was released
on a temporary pass, should govern. If such is the case, and I
think it is, there is no question of the law operating retrospec
tively, as is argued by counsel for the prisoner.
Freedman C.J.M., dissenting, said:
In my view this case falls within the ambit of the decision of
the Supreme Court of Canada in Marcotte v. Deputy Attorney-
General of Canada ... .
Legislation enacted by Parliament subsequent to this appli
cant's admission to the penitentiary (Vide the Parole Act,
R.S.C. 1970, Cap. P-2, Sec. 20 and 21) would, if applicable,
deprive this accused of his right to statutory remission. But I do
not think that this legislation is applicable to him. He can only
be subject to it if the legislation is given a retrospective effect.
But it is a well recognized principle of statutory construction
that retrospective effect, resulting in an interference with exist
ing rights, should not be given to legislation unless its language
expressly or by necessary intendment requires such an interpre
tation. In the present matter the giving of a retrospective effect
to the Parole Act would be to deprive the applicant of a "real
and immediate entitlement". Vide Marcotte, supra, and In re
Dwyer [1975] 4 W.W.R. 54. I am not prepared to accede to
such an interpretation of the legislation.
It is obvious that section 21(1) is not operating
retrospectively in so far as the forfeiture of parole
is concerned, since the appellant was released on
parole and committed the indictable offence giving
rise to forfeiture after the section came into force.
It is surely reasonable that when the appellant was
released on parole he should be governed by the
law respecting forfeiture of parole that was then in
force. But the appellant argues that because the
effect of that law would be to deprive him of a
vested right to statutory remission he should be
governed not by that law but by the earlier law
respecting forfeiture that did not have the effect of
causing an inmate to lose statutory remission. This
would be to apply to the appellant a law respecting
forfeiture of parole that was no longer in force
when he was released on parole. It seems to me
that this serves to emphasize that what is involved
here is a provision of law that is directed to
conduct that gives rise to a forfeiture of parole and
not to the nature of the right to statutory remission
to which the appellant became entitled at the time
he was received into penitentiary following his
conviction of rape. A statute is not retrospective in
operation merely because it affects an existing
right. As Buckley L.J. said in West v. Gwynne
[1911] 2 Ch. 1, at page 12: "Most Acts of Parlia
ment, in fact, do interfere with existing rights."
Even if this is not a true case of retrospective
application, however, there is also a presumption
that the legislature does not intend to take away or
impair a vested right unless the intention to do so
is clear and unavoidable.
The presumption against interference with
vested rights was stated by Duff C.J. in Spooner
Oils Limited v. The Turner Valley Gas Conserva
tion Board [1933] S.C.R. 629, at page 638 as
follows:
A legislative enactment is not to be read as prejudicially
affecting accrued rights, or "an existing status" (Main v. Stark
(1890) 15 App. Cas. 384, at 388), unless the language in which
it is expressed requires such a construction. The rule is
described by Coke as a "law of Parliament" (2 Inst. 292),
meaning, no doubt, that it is a rule based on the practice of
Parliament; the underlying assumption being that, when Parlia
ment intends prejudicially to affect such rights or such a status,
it declares its intention expressly, unless, at all events, that
intention is plainly manifested by unavoidable inference.
Thus the presumption against retrospective
operation and the presumption against interference
with vested rights must yield where all the circum
stances point to an unavoidable conclusion that the
legislature must have intended such operation or
interference.
Certainly, the benefit of any uncertainty must
be given to the person affected by the legislation.
As Wright J. put it in Re Athlumney [1898] 2
Q.B. 547, at pp. 551-2:
Perhaps no rule of construction is more firmly established than
this—that a retrospective operation is not to be given to a
statute so as to impair an existing right or obligation, otherwise
than as regards matter of procedure, unless that effect cannot
be avoided without doing violence to the language of the
enactment. If the enactment is expressed in language which is
fairly capable of either interpretation, it ought to be construed
as prospective only.
Reference has also been made to what was said
by Dickson J. in the Marcotte case.
What is to be looked at in attempting to deter
mine the intention of the Legislature is indicated
by Lord Hatherley L.C. in Pardo v. Bingham
(1868-69) L.R. 4 Ch. App. 735, at page 740 as
follows:
Now, in the very case of Moon v. Durden, Baron Parke did
not consider it an invariable rule that a statute could not be
retrospective unless so expressed in the very terms of the section
which had to be construed, and said that the question in each
case was whether the Legislature had sufficiently expressed an
intention. In fact, we must look to the general scope and
purview of the statute, and at the remedy sought to be applied,
and consider what was the former state of the law, and what it
was that the Legislature contemplated.
In the light of these criteria I think it is neces
sary to conclude that Parliament intended that
section 21(1) of the Parole Act should apply to all
cases in which an inmate was released on parole on
or after August 26, 1969, the date on which the
section was deemed to come into force, although
the effect would be to cause a loss of statutory
remission to which an inmate had become entitled
before it came into force. Section 21(1) is remedial
legislation. Its purpose is to make the consequence
of a forfeiture of parole for the commission of an
indictable offence while on parole more severe
than it was under the previous state of the law.
The purpose of the legislation would be defeated in
a substantial measure if it could only be applied to
cases in which a parolee had been sentenced and
received into penitentiary after it came into force.
While the Supreme Court of Canada held in the
Marcotte case that the right to statutory remission
was a real and immediate entitlement on being
received into the penitentiary, it was nevertheless,
even then, a right which could be forfeited by
certain kinds of conduct. Subsections (3) and (4)
of section 22 of the Penitentiary Act provided that
statutory remission was subject to forfeiture in
whole or in part for conviction in disciplinary court
of a disciplinary offence and to the extent of
three-quarters for conviction by a criminal court of
the offence of escape or attempt to escape. The
stipulation by section 21(1) of the Parole Act of
another cause of forfeiture did not alter the essen
tial nature of the right to statutory remission as a
"real and immediate entitlement", subject to possi
ble forfeiture for conduct specified by law.
The inmate who agreed to go on parole after
section 21(1) came into force knew or was pre
sumed to know that if he committed an indictable
offence punishable by imprisonment for two years
or more while on parole he would forfeit the
statutory remission that stood to his credit when
he was released on parole. This meets the test
suggested by Dickson J. in the Marcotte case. It is
difficult to see how such an application of the law
can be reasonably complained of as unjust. Indeed,
it would appear to be unjust if as between two
persons going on parole after August 26, 1969 one
could commit an indictable offence without loss of
statutory remission because he had been received
into penitentiary before that date, while for the
same conduct the other would lose his statutory
remission because he had been received into peni
tentiary after that date.
It is significant, I believe, that in the case of
mandatory supervision, which clearly affects the
nature of the right to statutory remission since it
requires the period of such remission to be served
under supervision after release from prison, the
Legislature clearly contemplated that the opera
tion of the law should be limited with reference to
the date on which the inmate had been sentenced.
Section 11B (now section 15) of the Parole Act,
as enacted by section 101(1) of the Criminal Law
Amendment Act, 1968-69, S.C. 1968 - 69, c. 38
read as follows:
11s. (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 (e) of section 8, section 9, section 11 and
section 12 to 17 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.
Subsection (2) of section 101 of the Criminal
Law Amendment Act, 1968-69, provided:
(2) Section 1Is of the said Act as enacted by subsection (1)
shall apply only in respect of persons who are sentenced to
imprisonment in or transferred to a class or classes of penitenti
aries or other places of imprisonment described in a proclama
tion on and after a day or days fixed by the proclamation.
Pursuant to subsection (2), section 11B of the
Parole Act was proclaimed in force "in respect of
persons who are sentenced to imprisonment in or
transferred to any class of penitentiary on and
after the first day of August, 1970." (Canada
Gazette, Part II, Vol. 104, No. 15). Had it been
intended that section 17(1), the new provision with
respect to forfeiture of parole, should be limited in
its operation with reference to the date on which a
person was sentenced or received into penitentiary,
Parliament would logically have made similar
provision with respect to its proclamation. Instead,
such proclamation was provided for by section 120
of the Criminal Law Amendment Act, 1968-69, in
general terms 'as follows:
120. This Act or any of the provisions of this Act shall come
into force on a day or days to be fixed by proclamation.
I think this indicates that it was the intention of
Parliament that from the date it came into force
by proclamation the new provision concerning for
feiture of parole was to operate with respect to all
persons paroled on or after that date, regardless of
when they were originally sentenced or received
into the penitentiary. To avoid the adverse effect
on statutory remission to which an inmate became
entitled before section 21(1) came into force would
require a very drastic limitation of the operation of
the section for which I can find no warrant in the
terms of the statute.
The appellant contends that the terms of section
21(1)—"the portion of the term to which he was
sentenced that remained unexpired at the time his
parole was granted, including any period of remis
sion, including earned remission, then standing to
his credit"—indicate that the section does not
contemplate the kind of right to statutory remis
sion that was recognized in the Marcotte case. He
argues that if, prior to the enactment of section
21(1), statutory remission was a "real and
immediate entitlement" in the sense of an immedi
ate reduction of one-quarter in the length of the
sentence to be served, then it could not be said to
be included in the portion of the term to which the
inmate was sentenced that remained unexpired at
the time his parole was granted. The matter was
put thus by Anderson J. in Regina v. Dwyer,
supra, [at page 67]:
If "the unexpired term of imprisonment" referred to in ss. 20
and 21(1) of the Parole Act means, in accordance with Mar-
cotte, that the period of statutory remission is to be deducted
then the only way in which the prisoner can be required to serve
the period of statutory remission is by giving the words "includ-
ing any period of remission" the meaning "and" or "in addition
to" or "together with". If the words "including any period of
remission" mean "and" or "in addition to" then the unexpired
term of imprisonment must be calculated as follows:
(a) Original term of imprisonment.
(b) Subtract statutory remission.
(c) Add statutory remission.
I cannot conclude that Parliament meant:
(a) that the amended legislation was to be completely inef
fective; or
(b) that the amended legislation was to be construed first by
deducting statutory remission and secondly by adding statu
tory remission back again.
With respect, I do not find this necessarily
indicates that Parliament was not contemplating
statutory remission to which an inmate became
entitled before section 21(1) came into effect.
Obviously, there had to be some qualification of
the original terms in the provision respecting for
feiture of parole in order to effect the forfeiture of
statutory remission. The words in section 21(1) are
descriptive of what must be included in the compu
tation of the sentence to be served on forfeiture of
parole. Some other form of words might have been
used to indicate that the periods of statutory and
earned remission were to be included in the calcu
lation of the sentence to be served, but it seems to
me that the word "including" was the obvious one.
It must be remembered that the amendment to the
law was introduced well before any of the judg
ments were rendered in the Marcotte case. I
cannot conclude from the use of the word "includ-
ing" rather than "and" that Parliament was con
templating only statutory remission to which man
datory supervision would apply and which would
thus not be a deduction from the sentence in the
same sense as under the previous state of the law.
For it is the effect of mandatory supervision, and
not the additional cause of forfeiture prescribed by
section 21(1), which could conceivably alter the
sense in which statutory remission was to be
regarded as a real and immediate entitlement—a
period that the inmate was deemed to have served.
To place this construction on the words of section
21(1) would mean that it could only apply to cases
in which the inmate had been sentenced on or after
August 1, 1970. I find this too improbable a result
to ascribe to legislative intention.
For the foregoing reasons I am in respectful
agreement with the conclusion of the majority of
the Manitoba Court of Appeal on this issue, and
with what was impliedly held with respect to it by
the learned Trial Judge.
The appellant contends that the application of
section 21(1) of the Parole Act so as to cause the
loss of the statutory remission which stood to his
credit at the time he was released on parole would
be contrary to the Canadian Bill of Rights. He
relies particularly on the right of the individual to
liberty and the right not to be deprived thereof
except by due process of law, which are affirmed
by section 1(a) and protected against infringement
by section 2. I can find nothing in the provisions of
the Canadian Bill of Rights that imparts addition
al force to the common law rules of statutory
construction embodied in the presumptions against
retrospective operation and interference with
vested rights, and certainly nothing that affords
the basis of an absolute prohibition against such
operation or interference. Nor do I find that the
provisions of the Parole Act with respect to forfeit
ure of parole are otherwise in conflict with the
right of the individual not to be deprived of liberty
except by due process of law. Whatever due pro
cess may mean in a procedural context it is a
doubtful basis for an attack on the substantive
nature of federal legislation. Curr v. The Queen
[1972] S.C.R. 889. The legislation in this case
creates the authority to permit an inmate to serve
part of his sentence under supervision in the com
munity, and because of the risks involved, also
provides for forfeiture of such parole under certain
circumstances, with consequent loss of the credit
for time served while on parole, as well as statu
tory and earned remission that stood to the
inmate's credit when he was released on parole.
These consequences are severe indeed, but they are
what Parliament considers necessary to assure
compliance with the conditions of parole. In such a
case it is not for the courts to question that legisla
tive judgment on the ground of some substantive
notion of due .process which purports to evaluate
the reasonableness of legislative means in relation
to legislative ends. The appellant argues that since
the effect of a forfeiture of parole is to make an
inmate serve a part of his sentence twice it is
tantamount to the imposition of a new sentence
without judicial process. Such forfeiture is not the
determination of criminal responsibility and the
imposition of imprisonment therefor in a particular
case by legislation alone. As to whether that might
be in conflict with the Canadian Bill of Rights, I
do not find it necessary to express an opinion.
Parliament has prescribed that upon conviction of
an indictable offence committed while on parole a
parolee shall forfeit the credit for certain time
which he would otherwise, by virtue of legislative
provision, have been deemed to have served on his
sentence. The result is not a new sentence but a
re-calculation of the balance of the term of impris
onment that must be served on the original sen
tence. What the contention of the appellant
amounts to is an assertion that Parliament cannot
effect the forfeiture of rights by operation of law
but only by some adjudicative process. I can find
no basis in the due process provision of the
Canadian Bill of Rights for such a drastic limita
tion of the power of Parliament.
Nor do I see any basis in the other provisions of
the Canadian Bill of Rights, to which the appel
lant alluded, the prohibition against arbitrary
imprisonment and the imposition of cruel and
unusual treatment or punishment, for a successful
attack on the forfeiture provisions of the Parole
Act. The additional time that the inmate may be
required to serve as a result of his forfeiture of
parole is not imposed by arbitrary action but is
prescribed by law that applies to all persons who
forfeit parole, and severe and even drastic as it
may appear as a penalty for such forfeiture, it falls
short of what might be reasonably characterized as
cruel and unusual punishment.
The appellant also invokes certain provisions of
the Criminal Code of Canada against the applica
tion of section 21(1) of the Parole Act. He refers
to section 11 of the Code which reads as follows:
11. Where an act or omission is an offence under more than
one Act of the Parliament of Canada, whether punishable by
indictment or on summary conviction, a person who does the
act or makes the omission is, unless a contrary intention
appears, subject to proceedings under any of those Acts, but is
not liable to be punished more than once for the same offence.
The short answer to the submission based on
this section is that the section is directed to liabili
ty to punishment for an offence; the forfeiture
provisions of section 21(1) of the Parole Act do
not constitute additional punishment for the origi
nal offence, nor for the offence committed while
on parole, but a penalty for the act of committing
an indictable offence while on parole.
The appellant also refers to section 649(3) of the
Criminal Code, which reads as follows:
(3) Notwithstanding subsection (1) a term of imprisonment,
whether imposed by a trial court or the court appealed to,
commences or shall be deemed to be resumed, as the case
requires, on the day on which the convicted person is arrested
and taken into custody under the sentence.
The contention based on this section is that the
appellant's sentence continued to run while he was
on parole, and that this provision should prevail
over the terms of section 21(1) of the Parole Act
which cause the inmate to lose credit for the time
served while on parole. It is the same argument as
that which has been based on section 13 (1) of the
Parole Act and fails for the reason already indicat
ed with reference to that section. The term of
imprisonment continues to run so long as the
parole has not been forfeited. Forfeiture has the
effect, by virtue of the provisions of the Parole
Act, of causing the loss of the time that would
otherwise have been deemed to have been served
on the term of imprisonment. In a word, section
649(3) of the Criminal Code and section 13(1) of
the Parole Act must be read subject to section
21(1) of the latter Act.
For all of these reasons I am of the opinion that
there was no error in the judgment of the Trial
Division and that the appeal should be dismissed. I
see no reason to interfere with the order as to
costs.
* * *
URIE J. concurred. •
* * *
RYAN J. concurred.
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.