Judgments

[1993] 3 F.C. 3

A-213-93

The Commissioner of Corrections (Appellant/ Respondent by Cross-Appeal) (Respondent)

v.

John Frankie (Respondent/Appellant by Cross-Appeal) (Applicant)

Indexed as: Frankie v. Canada (Commissioner of Corrections) (C.A.)

Court of Appeal, Isaac C.J., Stone and Linden JJ.A.—Ottawa, April 27 and May 28, 1993.

Parole — Inmate recommitted to custody, parole suspended but not yet revoked on date Corrections and Conditional Release Act coming into force (November 1, 1992) — Statutory release date calculated under s. 138(2) from date parole revoked — Appellant not required to take into account or credit to unexpired portion of respondent’s sentence earned remission standing to his credit November 1, 1992.

Construction of statutes — Corrections and Conditional Release Act, s. 138(2) — English version of s. 138(2) referring to recommitment to custody in accordance with s. 138(1) — French version referring simply to “au moment de sa réincarcération” — No reference to recommital to custody in accordance with subsection (1) — On purely grammatical basis, “réincarceration” in French version referring only to reincarceration in accordance with s. 138(1), i.e. réincarcération upon revocation — Specific fore-references exception, rather than rule, in French legislative drafting — Principles of statutory interpretation — Although both versions of Act equally authoritative, legislation must be construed as best ensures attainment of objects and in context of Act — Recommitment of which s. 138(1) speaks meaning fresh recommitment upon revocation, not suspension of parole.

This was an appeal and cross-appeal from an order dismissing a motion for a declaration that calculation of the statutory release date must take into account and credit to the unexpired portion of a convict’s sentence the earned remission standing to his credit on November 1, 1992. The respondent was sentenced to five years’ imprisonment on February 16, 1989. He was released on day parole on September 4, 1990 and full parole on May 9, 1991. He was arrested, charged with a criminal offence and returned to custody on April 27, 1992. His parole was suspended the following day. On September 22, 1992 he was sentenced to seven months consecutive to his original sentence for the offence committed while on parole. On November 1, 1992, the Corrections and Conditional Release Act was proclaimed in force. On November 13, 1992, the respondent’s parole was revoked.

Under the former statutory regime, when his parole was suspended, the respondent was placed in custody, whereupon by virtue of subsection 25(2) of the Penitentiary Act, he became eligible to begin earning remission of his sentence which, in turn, could stand to his credit in determining his release date by virtue of the Parole Act, subsection 25(1).

The Corrections and Conditional Release Act abolished the notion of remission of sentence and provided for a single form of statutory release. Subsection 127(2) provides that for those persons sentenced before the Act came into force, normally accumulated remission must be taken into account. Section 135 provides for the suspension of both statutory release and parole. Subsection 138(1) provides that where parole is revoked after November 1, 1992, the offender shall be recommitted to custody and shall serve the portion of the term of imprisonment that remained unexpired on the day on which the parole or statutory release was terminated or revoked. Subsection 138(2) provides that an offender whose parole or statutory release has been revoked is not eligible for statutory release until after serving two thirds of the unexpired portion of the sentence after being recommitted to custody under subsection (1).

The Motions Judge concluded that Corrections and Conditional Release Act, section 138 governed the respondent’s case. She held that the statutory release date should be determined from the date of suspension of parole and should not take into consideration any earned remission standing to the inmate’s credit at the time the new Act came into force.

The issue on the appeal was whether the new statutory release date should be calculated from the date of suspension or of revocation of parole. The appellant argued that the new statutory release date should be determined from the date on which the respondent’s parole was revoked. Subsection 138(2) refers to recommitment to custody in accordance with subsection 138(1) i.e. upon formal revocation. Consequently, even though the respondent was recommitted to custody in fact at the time of suspension of parole, there is a new recommittal upon formal revocation, albeit a notional one. The respondent argued that statutory release date should be calculated from the date of suspension of parole because the French version of subsection 138(2) speaks merely of the two thirds portion of the sentence being measured from the moment of réincarcération i.e. it does not refer to recommittal to custody in accordance with subsection (1). Respondent’s counsel urged adoption of the canon of statutory interpretation that where there is a difference between two official versions of a statute, preference should be given to the one which favours the liberty of the subject. The issue on the cross-appeal was whether any earned remission standing to an inmate’s credit when the new Act came into force must be taken into account in determining the length of time the inmate must serve. The respondent argued that any remission standing to his credit on November 1, 1992 should be taken into account in determining his statutory release date. Since the Act does not expressly provide for the forfeiture of previously earned remission, it cannot have been forfeited.

Held, the appeal should be allowed in part; the cross-appeal should be dismissed.

The statutory release date should be calculated from the date on which the respondent’s parole was revoked and he was recommitted to custody as mandated by Corrections and Conditional Release Act, subsection 138(1). On a purely grammatical basis, the word “réincarcération” in the French version of subsection 138(2) cannot refer to anything other than reincarceration in accordance with subsection (1), i.e. réincarcération upon revocation, notwithstanding that no specific reference to the previous subsection is made. It is a principle of legislative drafting in the French language that specific fore-references are the exception, rather than the rule and are only used when absolutely necessary. Although Official Languages Act, section 13 provides that both versions of the Act are equally authoritative, a legislative enactment must be construed in a manner “as best ensures the attainment of its objects” (Interpretation Act, section 12) and in the context of the Act as a whole. The plain meaning of paragraph 135(1)(c) is that the recommitment under this paragraph is subject to the temporal limitations imposed by the paragraph itself, i.e. cancellation of the suspension, termination or revocation of the parole, etc. This reinforces the appellant’s position that the recommitment of which subsection 138(1) speaks must mean a fresh recommitment upon revocation of parole.

The Commissioner was not required to take into account or credit to the unexpired portion of the respondent’s sentence the earned remission standing to his credit on November 1, 1992. It is clear from subsection 127(2) that Parliament intended that persons already in prison for crimes committed before the coming into force of the new Act should receive credit for remission earned under the old system of early release, if they fell within the class described therein. Since Parliament made only one explicit reference to the carry-over of remission credits, it did not intend that such credits should be carried over in other cases. Other persons not falling within the class would have their release dates determined by another formula. Since the respondent did not fall within the class of persons described in subsection 127(2), he was not entitled to carry over any earned remission standing to his credit on the date of revocation of his parole. The respondent fell within subsection 138(2) which requires that two thirds of the unexpired period of the judicially imposed sentence be served.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act to provide for the Conditional Liberation of Penitentiary Convicts, 62 Vict., c. 49.

Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 99, 100, 101, 102, 106, 107, 108, 112, 119, 120, 121, 127, 128, 135, 138.

Criminal Code, R.S.C., 1985, c. C-46, ss. 749, 751.

Federal Court Act, R.S.C., 1985, c. F-7, s. 52(b)(i).

Interpretation Act, R.S.C., 1985, c. I-21, s. 12.

Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, s. 13.

Parole Act, R.S.C., 1985, c. P-2 (rep. by S.C. 1992, c. 20, s. 213), ss. 16 (as am. by R.S.C., 1985 (2nd Supp.), c. 35, s. 5), 19, 21.1 (as enacted by R.S.C., 1985 (2nd Supp.), c. 34, s. 5), 22 (as am. by R.S.C., 1985 (2nd Supp.), c. 35, s. 11), 23 (as am. idem, s. 12), 24 (as am. by R.S.C., 1985 (2nd Supp.), c. 34, s. 6), 25 (as am. idem, s. 7).

Parole Act, S.C. 1958, c. 38, s. 16.

Penitentiary Act, R.S.C., 1985, c. P-5 (rep. by S.C. 1992, c. 20, s. 214), s. 25 (as am. by R.S.C., 1985 (2nd Supp.), c. 34, s. 10).

Penitentiary Act, S.C. 1960-61, c. 53, s. 22.

The Penitentiary Act of 1868, 31 Vict., c. 75.

Ticket of Leave Act, R.S.C. 1952, c. 264.

CASES JUDICIALLY CONSIDERED

NOT FOLLOWED:

Paliotti c. Canada (Procureur général), judgment dated 25/2/93, Montréal 500-36-000069-933, J.E. 93-588 (Sup. Ct.), not yet reported.

DISTINGUISHED:

Marcotte v. Deputy Attorney General of Canada et al., [1976] 1 S.C.R. 108; (1974), 51 D.L.R. (3d) 259; 19 C.C.C. (2d) 257; 3 N.R. 613.

REFERRED TO:

Colquhoun v. Brooks (1889), 14 App. Cas. 493 (H.L.); R. v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R. 865; [1979] C.T.C. 71; (1979), 79 DTC 5068; 25 N.R. 361.

AUTHORS CITED

Canada. Dept. of Justice. Report of a Committee Appointed to Inquire Into the Principles and Procedures Followed in the Remission Service of the Department of Justice of Canada. Ottawa: Queen’s Printer, 1956 (Chair: G. Fauteux).

Cole, David P. and Allan Manson. Release From Imprisonment: The Law of Sentencing, Parole and Judicial Review. Scarborough, Ont.: Carswell, 1990.

Guide canadien de rédaction législative française, permanent edition, Ottawa: Department of Justice Canada.

APPEAL from trial judgment, [1993] 2 F.C. 327. Appeal allowed in part.

COUNSEL:

Arnold S. Fradkin and Claire McKinnon for appellant/respondent by cross-appeal (respondent).

Elizabeth A. Thomas for respondent/appellant by cross-appeal (appellant).

SOLICITORS:

Deputy Attorney General of Canada for appellant/respondent by cross-appeal (respondent).

Elizabeth A. Thomas, Kingston, Ontario, for respondent/appellant by cross-appeal (appellant).

The following are the reasons for judgment rendered in English by

Isaac C.J.: This is an appeal and a cross-appeal from the order of a Motions Judge in the Trial Division pronounced on February 25, 1993 [[1993] 2 F.C. 327], which dismissed a motion by the respondent (appellant by cross-appeal) for a declaration that the appellant (respondent by cross-appeal) must, in calculating the respondent’s statutory release date, take into account and credit to the unexpired portion of the respondent’s sentence the earned remission standing to his credit on November 1, 1992.

The appeal and the cross-appeal concern the method of determining, under the provisions of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the “Act”), the release date of an inmate who was in custody and who had had his parole suspended before the date on which the Act came into force (November 1, 1992), but whose parole was not revoked until some time after that date. This main issue has two separate components: first, whether the length of time the inmate must serve should be calculated from the date of suspension of parole or from the date of its revocation and, secondly, whether any earned remission standing to an inmate’s credit at the time the new Act came into force must be taken into account in determining the length of time the inmate must serve.

BACKGROUND

The respondent and appellant by cross-appeal is a prisoner in the Bath Institution, a penitentiary located in Kingston, Ontario. On February 16, 1989, he was sentenced to serve a term of five years’ imprisonment in a penitentiary. He began serving his sentence on that date.

The respondent was released on day parole on September 4, 1990 and on full parole on May 9, 1991.

On April 27, 1992, the respondent was arrested and charged with a criminal offence. As a result, he was returned to custody where he has remained to the present time. On April 28, 1992, his parole was suspended. On September 22, 1992, he was sentenced to a term of imprisonment of seven months for the offence he had committed while on parole, to be served consecutively to his original sentence. On November 13, 1992, the National Parole Board revoked his parole.

The intervening factor which gives rise to this appeal was the proclamation in force of the Act on November 1, 1992, twelve days before the formal revocation of his parole. The respondent says that in determining his statutory release date under the new Act, he is entitled to receive credit for all of the remission that he had earned under the predecessor legislation up to the date that the new Act came into force.

The respondent’s application for a declaration to this effect was dismissed by the Motions Judge, who concluded [at page 336] that his statutory release date should be determined

by calculating two thirds of the time remaining, that is, starting from the date he was taken into custody and his parole suspended (April 28, 1992) and ending with the date of his sentence of imprisonment as originally imposed by the Court.

The Crown now appeals from that portion of the decision and says that the correct reference date should have been the date of revocation of his parole, rather than its suspension. The respondent, in turn, while agreeing with the Motions Judge’s determination of the reference point, says in his cross-appeal that there was error in not crediting him with remission that he earned up to the date of coming into force of the Act.

THE LEGISLATIVE FRAMEWORK PRIOR TO THE PASSING OF THE CORRECTIONS AND CONDITIONAL RELEASE ACT

Since the respondent bases his argument as to entitlement to credit on the Act and its relationship with its predecessors, it might be useful to review at the outset the relevant legislative provisions.

The executive power to modify a judicially imposed sentence of imprisonment has its origin in the royal prerogative of mercy, whereby the Sovereign may pardon convicted persons absolutely or conditionally.[1] A statutory form of pardon is provided in section 749 of the Criminal Code [R.S.C., 1985, c. C-46], although section 751 of the Code specifically preserves the Sovereign’s prerogative to show mercy to transgressors of the law.

The modern scheme for the early release of prisoners has its roots in The Penitentiary Act of 1868[2] which provided that on good behaviour, prisoners could earn up to five days’ remission of their sentence for each month served. As will be seen, the concept of remission, or earned reduction in sentence, continued with the successive revisions of the Penitentiary Act [R.S.C., 1985, c. P-5] up to its repeal.[3]

In a parallel development, in 1899, Parliament enacted An Act to provide for the Conditional Liberation of Penitentiary Convicts[4] which provided for a system for the conditional release of prisoners, at a time not solely dependent upon earned remission, to assist them in their reintroduction into society. Partly in response to the Fauteux Report of 1956,[5] the Ticket of Leave Act [R.S.C. 1952, c. 264] was replaced in 1959 by the Parole Act.[6]

As it stood at the time relevant to this case, the Parole Act[7] provided that the National Parole Board had the power to grant parole to inmates, “subject to any terms or conditions it consider[ed] reasonable” (section 16 [as am. by R.S.C., 1985 (2nd Supp.), c. 35, s. 5]). More significantly as far as the respondent is concerned, section 19 of that Act provided that while on parole, an inmate’s sentence was deemed to be continuing until expiration according to law and section 21.1 [as enacted by R.S.C., 1985 (2nd Supp.), c. 34, s. 5] provided that remission earned under the Penitentiary Act was to be credited against the sentence such that an inmate was entitled to be released “prior to the expiration of the sentence according to law” unless the Parole Board ordered otherwise.

Under the Penitentiary Act as it stood before its repeal,[8] an inmate could earn a maximum of fifteen days remission for each month of imprisonment served (section 25 [as am. by R.S.C., 1985 (2nd Supp.), c. 34, s. 10]).

As I have noted, the respondent was initially convicted on February 16, 1989. He was released on parole on September 4, 1990 (initially day parole, but full parole as of May 9, 1991) and his parole was suspended on April 28, 1992. The process for, and the significance of, suspension of parole under the pre-Corrections and Conditional Release Act regime was dealt with by section 22 [as am. by R.S.C., 1985 (2nd Supp.), c. 35, s. 11] of the Parole Act. Since it plays such an important part in the respondent’s argument, it is perhaps helpful to quote it at length:

22. (1) A member of the Board or a person designated by the Chairman, when a breach of a term or condition of parole occurs or the Board or person is satisfied that it is necessary or reasonable to do so in order to prevent a breach of any term or condition of parole or to protect society, may, by a warrant in writing signed by the member or designated person,

(a) suspend any parole other than a parole that has been discharged;

(b) authorize the apprehension of a paroled inmate; and

(c) recommit an inmate to custody until the suspension of the inmate’s parole is cancelled or the inmate’s parole is revoked.

(2) The Board or a person designated by the Chairman may, by a warrant, transfer an inmate following his recommitment to custody pursuant to paragraph (1)(c) to a place where the inmate is to be held in custody until the suspension of his parole is cancelled or his parole is revoked.

Subsections 22(3) and (4) provided for the administrative review of suspension orders, so are accordingly not relevant to the issue in this case, but subsection 22(5) provided that an inmate who was in custody because his parole had been suspended, i.e., a person in the position of the respondent, was deemed to be serving his sentence. It was by virtue of this provision that he continued to earn remission during the period after the suspension of his parole up to the date of the coming into force of the Act.

The procedure for the actual revocation of parole was provided for by sections 23 [as am. idem, s. 12] and 24 [as am. by R.S.C., 1985 (2nd Supp.), c. 34, s. 6] of the Parole Act.

To summarize, the release regime in existence before the coming into force of the Act contemplated the following sequence of events in cases where, like the present, an inmate on parole had breached a term or condition of parole:

a) suspension of the parole,

b) apprehension of the inmate,

c) recommitment of the inmate to custody until the suspension of the inmate’s parole was cancelled or the inmate’s parole was revoked (subsection 22(1)), and

d) the holding of the inmate in custody until the suspension of parole was cancelled or his parole was revoked (subsection 22(2)).

Under these subsections the inmate’s recommitment was for a limited period and expired upon cancellation of the suspension or revocation of his parole.

Section 25, in turn, discussed the effect of revocation:

25. (1) On revocation of an inmate’s parole, the inmate 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 or to the corresponding place of confinement for the territorial division within which the inmate was apprehended.

In other words, subsection 25(1) contemplated that upon revocation of parole the inmate should have been recommitted to the place of confinement from which he was paroled, thus indicating a fresh recommitment from that referred to in section 22 when his parole was suspended.

Subsection 25(2) [as am. idem, s. 7] dictated the length of time that a prisoner, whose parole was revoked, had to serve. Quoted for present purposes, the provision read:

25. …

(2) Subject to subsection (3) and section 26.1 of the Penitentiary Act [neither of which is relevant here], where any parole is revoked, the paroled inmate shall, whether the inmate was sentenced or granted parole before or after the coming into force of this subsection, serve the portion of the term of imprisonment that remained unexpired at the time parole was granted, including any statutory and earned remission, less

…

(b) any time during which the inmate’s parole was suspended and the inmate was in custody;

(c) any remission earned after October 14, 1977 and applicable to a period during which the inmate’s parole was suspended and the inmate was in custody; …

Under the former statutory regime, then, when his parole was suspended, the respondent was placed in custody, whereupon by virtue of subsection 25(2) of the Penitentiary Act, he became eligible to begin earning remission of his sentence which, in turn, could stand to his credit in determining his release date by virtue of subsection 25(1) of the Parole Act. As will be seen, the essence of the respondent’s position is that what the old regime gave, the new Act could not take away without a specific provision to that effect.

THE CORRECTIONS AND CONDITIONAL RELEASE ACT

As has been noted, the Corrections and Conditional Release Act came into force on November 1, 1992. The new Act was intended to be a complete overhaul of the statutory release system for inmates in federal penitentiaries. Accordingly, among other things, Part II of the Act, entitled “Conditional Release and Detention”, replaced the relevant provisions of the Parole and Penitentiary Acts respecting conditional release from detention.

Section 100 of the Act describes the purpose of the new system of conditional release from detention as follows:

100. The purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.

Section 101 enumerates six principles to guide the National Parole Board in achieving that purpose and section 102 provides the criteria by which the Board may grant parole.

One of the most striking departures from the old regime is that the Act abolishes the notion of a remission of sentence. In place of the former practice of combining a statutory remission of sentence with an opportunity for prisoners to “earn” remission, section 127 of the new Act provides for a single form of “Statutory Release”:

127. (1) Notwithstanding the Prisons and Reformatories Act, an offender sentenced, committed or transferred to penitentiary is entitled to be released on the date determined in accordance with this section and to remain at large, subject to this Act, until the expiration of the sentence according to law.

For persons sentenced after the coming into force of the new Act, subsection (3) provides that the statutory release date is the date on which the prisoner completed two thirds of his sentence, but for those persons already under sentence (i.e., those in the situation of the respondent), subsection (2) provides that normally, accumulated remission must continue to be taken into account:

127. …

(2) Subject to subsections (4) and (5), the statutory release date of an offender sentenced to imprisonment for one or more offences committed before the day on which this section comes into force shall be determined by crediting against the sentence

(a) any remission, statutory or earned, standing to the offender’s credit on that day; and

(b) the maximum remission that could have been earned on the balance of the sentence pursuant to the Penitentiary Act or the Prisons and Reformatories Act, as those Acts read immediately before that day.

In addition to the newly enacted scheme of statutory release, the Act provides in sections 119-121 for the parole of certain classes of inmates; but the respondent does not fall in any of them. However, provision is made in section 135 for the suspension of both statutory release and parole in language markedly similar to the language of section 22 of the Parole Act:

135. (1) A member of the Board or a person designated by the Chairperson of the Board, when an offender breaches a condition of parole or statutory release or when the member or designated person is satisfied that it is necessary and reasonable to suspend the parole or statutory release in order to prevent a breach of any condition thereof or to protect society, may, by warrant,

(a) suspend the parole or statutory release;

(b) authorize the apprehension of the offender; and

(c) authorize the recommitment of the offender to custody until the suspension is cancelled, the parole or statutory release is terminated or revoked or the sentence of the offender has expired according to law.

(2) A person designated by the Chairman may, by warrant, order the transfer to penitentiary of an offender who is recommitted to custody pursuant to subsection (1) in a place other than a penitentiary.

Analogous to section 25 of the Parole Act, and lying at the heart of this present appeal, section 138 of the Act describes the effect of a revocation of parole after November 1, 1992:

138. (1) Where the parole or statutory release of an offender is terminated or revoked, the offender shall be recommitted to custody and shall serve the portion of the term of imprisonment that remained unexpired on the day on which the parole or statutory release was terminated or revoked.

(2) Subject to subsections 130(4) and (7) [neither of which is relevant here], an offender whose parole or statutory release has been revoked is not eligible for statutory release until after serving two thirds of the unexpired portion of the sentence after being recommitted to custody under subsection (1).

THE DECISION BELOW

The Motions Judge accepted that the respondent’s case fell to be determined under section 138 of the Corrections and Conditional Release Act. It would seem from the reasons for judgment that the principal point of argument between the parties below concerned the meaning of the phrase “portion of the term of imprisonment that remained unexpired” as mentioned in subsection 138(1). The applicant below (i.e., the present respondent) argued that it must mean the judicially imposed sentence of imprisonment less any earned remission. For its part, the Crown (i.e., the present appellant) contended that, properly construed, the phrase referred simply to the remanet of the sentence, without any consideration of remission.

In support of his position, the respondent relied upon the decision of the Supreme Court of Canada in Marcotte v. Deputy Attorney General of Canada et al., [1976] 1 S.C.R. 108, in which it was held that a similar expression in an earlier version of the Parole Act meant the remanet of the sentence less accrued remission.

Like the respondent here, Marcotte had had his parole first suspended, and then revoked for misbehaviour. The issue was whether under the Parole Act as it stood at the time,[9] the revocation of an inmate’s parole had the effect of erasing the statutory remission standing to his credit at the time his parole was granted.

In that case, the Crown’s argument was based on subsection 16(1) of the Parole Act, which, as I have noted, was similar in wording to the provision at issue here. It read:

16. (1) Where the parole granted to an inmate has been revoked, he shall be recommitted to the place of confinement to which he was originally committed to serve the sentence in respect of which he was granted parole, to serve the portion of his original term of imprisonment that remained unexpired at the time his parole was granted.

Dickson J. (as he then was), writing for a majority of the Court, did not find the Crown’s argument persuasive. He noted that section 22 of the Penitentiary Act,[10] which provided for the granting of statutory remission, also set out specific circumstances in which statutory remission would be forfeited. This being the case, he said that section 22 amounted to “an entire code governing the grant and forfeiture of statutory remission” (at page 111) and did not make provision for the forfeiture in Marcotte’s case. Moreover, he found that statutory remission was an entitlement as of right from the time of initial incarceration and not a credit whose accrual was delayed (ibid.).

As to the effect of subsection 16(1) on the scheme for early release, he continued [at page 112]:

Turning to s. 16 of the Parole Act, where parole has been revoked the inmate is recommitted to serve the portion of his original term of imprisonment that remained unexpired at the time his parole was granted. If, as I conceive it, the statutory remission is truly credited upon the person being received into a penitentiary, then, unless forfeited in whole or in part pursuant to s. 22(3) or (4) of the Penitentiary Act, that credit must be taken into account in computing the unexpired portion of the original term of imprisonment.

It is clear that the conclusion of Dickson J. was based on the same reasoning underlying the maxim inclusio unius est exclusio alterius. At page 114, for example, he noted that under the old Ticket of Leave Act, “there was express provision for forfeiture of remission on forfeiture of a licence” (i.e., the former equivalent to parole). This was not the case under the new regime [at pages 114-115]:

… When the legislation was changed and the present ss. 22 to 25 of the Penitentiary Act were enacted, the provision was not carried forward into the new legislation. It is, therefore, I think, fair to conclude that Parliament did not intend any forfeiture by ss. 22 to 25 of the new legislation and that nothing in these sections affects the plain and ordinary meaning of the words used in s. 16(1) of the Parole …

Finally, his Lordship noted that even if the legislation was not as clear in its meaning as he thought it to be, any ambiguity would in the circumstances have to be resolved to Marcotte’s advantage. “No authority is needed”, he said [at page 115]

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.

In response to the respondent’s argument that this judgment should be conclusive of the issue here, the Motions Judge noted (as I have just done) that in Marcotte, Dickson J. had based his decision on the fact that the Penitentiary Act as it stood at the time expressly provided for forfeiture of remission upon commission of certain offences. In light of an explicit reference to forfeiture in certain circumstances, the Motions Judge noted, the Supreme Court was not willing to find that forfeiture could occur in other circumstances not mentioned by Parliament.

The Motions Judge found that the internal logic of the Corrections and Conditional Release Act was rather different. Referring to subsections 99(2), 127(6) and 128(1), all of which alluded to the completion of the sentence as imposed by the sentencing judge, the Motions Judge said [at page 335] that

… what is envisaged, when either parole or statutory release is cancelled, is that an inmate will be returned to custody to serve the rest of the sentence of imprisonment which was initially imposed by the Court subject to the establishment of a new statutory release date.

As to the new date of release, the Motions Judge continued [at page 335-336]:

This new statutory release date is determined by calculating forward from the time the inmate was first recommitted to custody (i.e., had his parole or statutory release suspended). The new date arrives after two thirds of the remaining sentence has been spent in custody.

THE PRINCIPAL APPEAL

As I noted at the outset, while together they raise a general inquiry as to the proper interpretation of the new system for early release, the appeal and cross-appeal each raise distinct issues. The principal appeal involves the question of the date from which the new statutory release date must be calculated. I will deal with that issue first.

While agreeing with the conclusion of the Motions Judge that no account is to be taken of earned remission in determining the date of statutory release, the appellant argues that the judgment in appeal was wrong in concluding that that date should be determined by calculating forward from the date of initial recommitment to custody, (i.e., from the date of suspension of the respondent’s parole). The appellant says that on a proper interpretation of section 138 the new statutory release date should instead be determined from the date on which the respondent’s parole was revoked. This argument proceeds on the premise that even though upon suspension of parole a person is recommitted to custody, the formal revocation of parole involves a new recommitment to custody.

I begin by saying that I agree with the Motions Judge that this case falls to be determined by section 138 of the Corrections and Conditional Release Act. Initially, I had some concern that the proper provision to be applied was section 127, but I am now satisfied that though it speaks generally to the position of inmates sentenced prior to the coming into force of the new Act, the specific situation with which we are concerned here, viz.: the revocation of parole of a prior sentenced inmate, is covered not by that section but by section 138.

I also agree with the Motions Judge that the reasoning enunciated by the Supreme Court in reaching its decision in Marcotte is not applicable to the Corrections and Conditional Release Act in view of the significant differences between the provisions of the Parole Act and Penitentiary Act under consideration in that case and the legislation at issue here.

Before us, the appellant argues that, subsection 138(2) refers to recommitment to custody in accordance with subsection 138(1), i.e., upon formal revocation. Consequently, even though the respondent was recommitted to custody in fact at the time of suspension of parole, there is a new recommittal upon formal revocation, albeit a notional one.

In response, counsel for the respondent argued, quite forcefully, that we should interpret section 138 as indicating that the starting point for the calculation of the statutory release date is the date of initial recommitment to custody upon suspension of parole. She offered two reasons in support of this position.

First, she said that, while she conceded that, taken alone, the English version of subsection 138(2) would support the interpretation urged by the appellant, the French version of subsection 138(2) makes no mention of recommittal to custody in accordance with subsection (1). Instead, the French version speaks merely of the two thirds portion of the sentence being measured from the moment of réincarcération. Urging that we adopt the canon of statutory interpretation that where there is a difference between the two official versions of a statute, preference should be given to the one which favours the liberty of the subject, she says that we should interpret subsection 138(2) to mean that the statutory release date should be calculated from the date of recommittal upon suspension and not from the date of recommittal upon revocation as the English version alone would suggest.

Secondly, she made reference to a decision of the Superior Court of Québec, Paliotti c. Canada (Procureur général), judgment dated 25/2/93, Montréal 500-36-000069-933, J.E. 93-588 (Sup. Ct.), not yet reported, coincidentally released on the same day that the reasons for judgment of the Motions Judge were released. In that case it was held that the relevant date is the date of suspension.

Turning first to the argument concerning the disparities between the French and English versions of subsection 138(2) of the Act, I am not convinced that counsel for the respondent is correct when she says that there is a difference between the two. For convenience, I will reproduce both versions side by side:

138. (1) Where the parole or statutory release of an offender is terminated or revoked, the offender shall be recommitted to custody and shall serve the portion of the term of imprisonment that remained unexpired on the day on which the parole or statutory release was terminated or revoked.

(2) Subject to subsections 130(4) and (7), an offender whose parole or statutory release has been revoked is not eligible for statutory release until after serving two thirds of the unexpired portion of the sentence after being recommitted to custody under subsection (1). [Underlining added.]

When placed together in this way, it is readily apparent that there is a difference in wording which, at first glance, would seem to support the respondent’s argument. On a closer examination, however, it becomes clear that, on a purely grammatical basis, the word réincarcération in the French version of subsection 138(2) cannot refer to anything other than reincarceration in accordance with subsection (1), notwithstanding that no specific reference to the previous subsection is made. They are both part of the same section, and accordingly are prima facie to be read together. To state it another way, the French version of subsection 138(2) speaks of the “moment de sa réincarcération”. In my view, this can only be taken to refer to the act of réincarcération in issue, i.e., the réincarcération which is spoken of in subsection 138(1) i.e., réincarcération upon revocation.

I would also add that unlike the case in English, it is a principle of legislative drafting in the French language that specific fore-references are the exception, rather than the rule and are only used when absolutely necessary. For example, the Guide canadien de rédaction législative française (permanent edition), section “Références législatives”, updated January, 1993 and published by the federal Department of Justice states at page 1:

[translation] To refer in legislation to all or part of some other provision, the Francophone drafter uses techniques quite different from those employed by the anglophone drafter, and generally more indirect than the latter.

The tendency in English drafting, even in short sections, to multiply references whether internal or otherwise may be explained by the way in which drafting techniques originating in Britain have evolved. In French drafting, references are reserved only for cases in which it is important to avoid any ambiguity.

Other examples of this difference in style of legislative drafting can be found in subsections 106(2), 107(2), 108(2) and 112(1) of the Corrections and Conditional Release Act, dealing with the jurisdiction of the Parole Board, as well as subsection 127(3), dealing with the statutory release date of offenders sentenced for offences committed after the coming into force of the new Act.

There is an additional reason that I do not accept the French version as controlling.

It is true that section 13 of the Official Languages Act[11] provides that both versions of the Act are equally authoritative. But this provision co-exists with section 12 of the Interpretation Act[12] which commands that a legislative enactment must be construed in a manner “as best ensures the attainment of its objects”, and also with common law rule that “when construing the terms of any provision found in a statute [courts are bound] to consider any other parts of the Act which throw light upon the intention of the legislature and which may serve to show that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act.” See, Colquhoun v. Brooks (1889), 14 App. Cas. 493, (H.L.), at page 506; R. v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R. 865, at pages 871-872.

Considered in light of those principles of statutory interpretation, both versions of section 138 of the Act must be read harmoniously together with each other and with the other provisions in Part II of the Act. For example, as I have already mentioned, subsection 127(5) of the Act fixes the statutory release date of an inmate who is on parole under the Parole Act on the day on which the Act came into force and whose parole is revoked after that day as being “the day on which the offender completes two thirds of the unexpired portion of the sentence after being recommitted to custody pursuant to subsection 138(1)”. To my mind, there is no doubt that in such a case, the statutory release date of an inmate falling within the class described in that subsection must commence from the date of revocation.

Furthermore, paragraph 135(1)(c) of the Act, which deals with suspension of parole (like its counterpart, section 22 of the Parole Act, now repealed), provides that upon suspension of parole, a member of the National Parole Board may by warrant, inter alia “authorize the recommitment of the offender to custody until the suspension is cancelled, the parole or statutory release is terminated or revoked or the sentence of the offender has expired according to law”. [Underlining added.] The plain meaning of these words is, in my view, that the recommitment under this paragraph is subject to the temporal limitations imposed by the paragraph itself, i.e., cancellation of the suspension, termination or revocation of the parole, etc. This thus reinforces the position taken by the appellant that the recommitment of which subsection 138(1) speaks must mean a fresh recommitment upon revocation of parole. For these reasons, I must reject this argument by the respondent.

Similarly, I am unable to accept the respondent’s argument based on the decision of the Superior Court of Québec in Paliotti c. Canada (Procureur général).

In the first place, unlike the respondent here, Paliotti’s parole was not suspended until November 10, 1992, i.e., after the Act came into force. Because of this, his statutory release date was governed by subsection 127(5) of the Act rather than subsection 138(2). This is made quite clear by the wording of subsection 127(5):

127. …

(5) Subject to subsection 130(7) and 138(2), the statutory release date of an offender who is on parole … on the day on which this section comes into force, and whose parole … is revoked on or after that day, is the day on which the offender completes two thirds of the unexpired portion of the sentence after being recommitted to custody pursuant to subsection 138(1). [Underlining added.]

Having said this, though, it is clear that the operative portions of both subsections 127(5) and 138(2) are similar in that they both speak of the service of “two thirds of the unexpired portion of the sentence after being recommitted to custody” pursuant to subsection 138(1). As the respondent urges here, Guerin J. of the Superior Court of Québec held that “recommitted to custody” meant the moment of first reincarceration. He said [at page 5]:

[translation] Section 138(1) provides that “Where the parole … is … revoked, the offender shall be recommitted to custody and shall serve the portion of the term of imprisonment that remained unexpired … ”.

He begings to serve the term from the time he is recommitted to custody, not from the day on which the “parole” is revoked.

This was, he suggested, in keeping with the philosophy of interpretation of penal statutes in favour of upholding the liberty of the subject (pages 5-6). With respect, I disagree, for the reasons I have already given.

Accordingly, I am of the view that the Motions Judge did, in fact, err in concluding that the statutory release date of the respondent should be calculated from the date on which his parole was suspended. In my view, on a proper construction of section 138 of the Corrections and Conditional Release Act, the statutory release date should be calculated from the date on which the respondent’s parole was revoked and he was recommitted to custody as mandated by subsection 138(1). In this respect I am in agreement with the submission made by the appellant. I would, therefore, allow the appeal.

THE CROSS-APPEAL

As noted, in his cross-appeal, the respondent argues that the Motions Judge erred in not concluding that any remission standing to his credit at the time of the coming into force of the Corrections and Conditional Release Act should be taken into account in determining his statutory release date.

In substance, the respondent argues that the reasoning of the Supreme Court of Canada in Marcotte applies here, and that since the Corrections and Conditional Release Act does not expressly provide for the forfeiture of previously earned remission, it cannot have been forfeited. In the respondent’s view, the expression “unexpired portion of the sentence” as used in section 138 of the Act must mean unexpired portion of the sentence less any earned remission.

I am unable to accept this argument. As I have already said, the reasons of Dickson J. in Marcotte were predicated on the basis of the maxim inclusio unius est exclusio alterius. In light of a specific reference to forfeiture in section 22 of the Penitentiary Act, the majority of Supreme Court in Marcotte was unwilling to find that forfeiture could occur in other circumstances.

Indeed, I am of the view that the application of this reasoning here leads to the opposite result. The new Act does provide in subsection 127(2) for a carry-over of remission credits. It reads in relevant part:

127. …

(2) Subject to subsections (4) and (5), the statutory release date of an offender sentenced to imprisonment for one or more offences committed before the day on which this section comes into force shall be determined by crediting against the sentence

(a) any remission, statutory or earned, standing to the offender’s credit on that day; and

(b) the maximum remission that could have been earned on the balance of the sentence pursuant to the Penitentiary Act or the Prisons and Reformatories Act, and those Acts read immediately before that day.

But that subsection is subject to the provisions of subsection 127(5) which, in turn, is subject to subsection 138(2). It is clear from subsection 127(2) that Parliament intended that persons already in prison for crimes committed before the coming into force of the new Act should receive credit for remission earned under the old system of early release, if they fell within the class described therein. It is equally clear in my view that other persons not falling within the class would have their release dates determined by another formula. In other words, since Parliament made only one explicit reference to the carry-over of remission credits, it is my view that it did not intend that such credits should be carried over in other cases. Since the appellant by cross-appeal does not fall within the class of persons described in subsection 127(2), it follows that he is not entitled to carry over any earned remission standing to his credit on the date of revocation of his parole.

I am therefore of the view that the Motions Judge did apply the correct principles. As I have already said, it is my view that the result in Marcotte is distinguishable on its facts. If the respondent had not had his parole suspended, his statutory release date would be determined according to the formula set out in subsection 127(2), but since it was, his date of release falls to be determined by subsection 138(2) which the Motions Judge correctly interpreted as requiring the service of two thirds of the unexpired period of the judicially imposed sentence. Indeed, as the Motions Judge points out at pages 335-336 any other interpretation could lead to an absurd result.

DISPOSITION

For all of the foregoing reasons, I would allow the appeal in part and dismiss the cross-appeal. I would order that the order pronounced by the Motions Judge on February 25, 1993, be varied by deleting the concluding sentence thereof and substituting therefor the following:

The statutory release date of the applicant is to be calculated from the date on which his parole was revoked.

Pursuant to subparagraph 52(b)(i) of the Federal Court Act [R.S.C., 1985, c. F-7], there will be a declaration that in calculating the statutory release date of the respondent, the appellant is not required to take into account or credit to the unexpired portion of the respondent’s sentence, the earned remission standing to his credit on November 1, 1992.

Stone J.A.: I agree.

Linden J.A.: I agree.

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