John James Hinks (Applicant)
v.
National Parole Board, Arthur Trono and Paul
Faguy (Respondents)
Trial Division, Kerr J.—Toronto, June 5;
Ottawa, June 16, 1972.
Imprisonment—Penitentiaries—Parole—Mandatory su-
pervision—Additional term for escape attempt—Remis-
sion, calculation of—Parole Act, 1958, c. 38, s. 11s(1),
amended 1968-69, c. 38, s. 101(1).
Whilst H was serving imprisonment for a criminal offence
he was convicted of attempting to escape, and on Novem-
ber 10, 1970, pie was sentenced to an additional 60 days
therefor. His sentences would normally have expired on
August 10, 1972, but with statutory remission of 162 days
and earned remission of 60 days he would have been
released on December 30, 1971. Instead, on that day he was
made subject to mandatory supervision until August 10,
1972, under section 11B(1) of the Parole Act, 1958, c. 38,
amended 1968-69, c. 38, s. 101(1), which came into force
on August 1, 1970. He applied for a writ of habeas corpus
and an order directing the respondents to discharge him on
the ground that he was being unlawfully detained.
Held, he was subject to mandatory supervision as provid
ed by section 11s. That enactment came into force after he
was sentenced to the additional term and it applied to the
remission of a sentence exceeding 60 days, which meant the
total of statutory and earned remission.
APPLICATION.
I. G. Scott for applicant.
P. A. Vita for respondents.
KERR J.—The applicant claims that he is
being held on "mandatory supervision" under
the custody and jurisdiction of the National
Parole Board for a period of his sentence to
penitentiary that, according to his claim, has
been remitted; and he has applied to this Court
by notice of motion dated May 18, 1972, for a
writ of habeas corpus and an order in lieu of a
writ of mandamus with certiorari-in-aid direct
ing the respondents to discharge him, on the
grounds that he is being detained and restrained
of his freedom by the respondents without
lawful authority or justification.
The application is made under section 18 of
the Federal Court Act, which reads as follows:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of
prohibition, writ of mandamus or writ of quo warranto,
or grant declaratory relief, against any federal board,
commission or other tribunal; and
(b) to hear and determine any application or other pro
ceeding for relief in the nature of relief contemplated by
paragraph (a), including any proceeding brought against
the Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
Rule 603 allows an application under section
18 to be brought by motion.
An identical application was made by the
applicant to the Supreme Court of Ontario, and
Grant J. held, in his decision dated April 6,
1972, that because the applicant is not confined
he is not entitled to the remedy of habeas
corpus (Masella v. Langlais [1955] 4 D.L.R.
346); also that section 18 of the Federal Court
Act clothes the Federal Court with exclusive
jurisdiction in any application for certiorari of
the nature requested by the applicant.
At the hearing of the present motion counsel
for the applicant said that he is not asking for a
writ of habeas corpus, and he requested leave
to amend the application by adding a request
for an injunction or for a declaratory judgment.
Counsel for the respondents did not oppose the
amendment, and leave to amend was granted, as
it appears to me that the application can be
effectively determined by a declaratory
judgment.
Paragraphs 1 to 8 of the applicant's affidavit
filed in support of the application read as
follows:
1. On November 25, 1969 and on December 2, 1969, I
was convicted of offences pursuant to the provisions of the
Criminal Code and was sentenced to terms of imprisonment
which I was ordered to serve in a Federal Penitentiary
maintained by the Commissioner of Penitentiaries pursuant
to the Penitentiary Act.
2. The respondent, Paul Faguy, is the Commissioner of
Penitentiaries.
3. The respondent, Arthur Trono, is the Director of
Joyceville Institution.
4. On November 10, 1970, while in confinement as set
out in paragraph one hereof I was sentenced to an addition
al term of imprisonment of, I believe, sixty (60) days for
escaping or attempting to escape custody contrary to the
provisions of the Criminal Code.
5. I have not been granted parole in respect of any of
these sentences.
6. I received and have been credited with one hundred
and sixty-two (162) days of Statutory Remission and sixty
(60) days of Earned Remission of my sentences. As a result
of applying this remission of two hundred and twenty-two
(222) days, to my sentences, which would normally expire
on August 10, 1972, I should have been released from the
Penitentiary on December 30, 1971.
7. Instead, on December 30, 1971, I was transferred
from the Penitentiary in which I was detained, Joyceville
Institution, and placed under the jurisdiction and in the
custody of the National Parole Board. The National Parole
Board determined that I should be held on "mandatory
parole" for that period of my sentence which had been
remitted, that is, from December 30, 1971 until August 10,
1972.
8. The effect of "mandatory parole" is to impose restric
tions on my freedom of a substantial kind. If I do not
comply, in the judgment of the National Parole Board, with
these restrictions, I may be returned to Penitentiary.
Sections 22 and 24 of the Penitentiary Act,
R.S.C. 1970, c. P-6, provide for statutory remis
sion and earned remission of sentence of
inmates of penitentiaries, 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 amount
ing to one-quarter of the period for which he has been
sentenced or committed as time off subject to good
conduct.
24. (1) Every inmate may be credited with three days
remission of his sentence in respect of each calendar month
during which he has applied himself industriously, as deter
mined in accordance with any rules made by the Commis
sioner in that behalf, to the program of the penitentiary in
which he is imprisoned.
The National Parole Board, established pur
suant to the Parole Act, S.C. 1958, c. 38, has
authority to grant parole to inmates as defined
in the Act. "Parole" is defined as authority
granted under the Act to an inmate to be at
large during his term of imprisonment.
"Mandatory supervision" (called "mandatory
parole" in the applicant's affidavit) was intro
duced by the Criminal Law Amendment Act,
1968-69, S.C. 1968-69, c. 38. Section 101(1) of
that Act amended the Parole Act by, inter alia,
adding section 11B (now section 15(1) of the
Parole Act, R.S.C. 1970, c. P-2) as follows:
110. (1) Where an inmate to whom parole was not grant
ed 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 continuing for the duration of such remission.
Section 101(2) provided as follows:
101. (2) Section 1 la of the said Act as enacted by sub
section (1) shall apply only in respect of persons who are
sentenced to imprisonment in or transferred to a class or
classes of penitentiaries or other places of imprisonment
described in a proclamation on and after a day or days fixed
by the proclamation.
A proclamation on July 30, 1970, declared
and directed that section 11B shall come into
force and have effect in respect of persons who
are sentenced to imprisonment in or transferred
to any class of penitentiary on or after the first
day of August, 1970.
Section 101(1) also added the following sec
tion 11A to the Parole Act:
11n. Where, either before or after the coming into force
of this section,
(a) a person is sentenced to two or more terms of impris
onment, or
(b) an inmate who is in confinement is sentenced to an
additional term or terms of imprisonment,
he shall, for all purposes of this Act, the Penitentiary Act
and the Prisons and Reformatories Act, be deemed to have
been sentenced, on the day on which he is so sentenced in
the circumstances described in paragraph (a), or on the day
on which he was sentenced to the term of imprisonment he
is then serving in the circumstances described in paragraph
(b), to a single term of imprisonment commencing on that
day and ending on the last day that he would be subject to
confinement under the longest of such sentences or under
all of such sentences that are to be served one after the
other, whichever is the later day.
Section 11A as above enacted was repealed in
March, 1970, by c. 31 of the Statutes of 1969-
70 and the following section 11A (now section
14 of the Parole Act, R.S.C. 1970, c. P-2) was
substituted:
11A. (1) Where, either before or after the coming into
force of this section,
(a) a person is sentenced to two or more terms of impris
onment, or
(b) an inmate who is in confinement is sentenced to an
additional term or terms of imprisonment,
the terms of imprisonment to which he has been sentenced,
including in a case described in paragraph (b) any term or
terms that resulted in his being in confinement, shall, for all
purposes of this Act, the Penitentiary Act and the Prisons
and Reformatories Act, be deemed to constitute one sen
tence consisting of a term of imprisonment commencing on
the earliest day on which any of those sentences of impris
onment commences and ending on the expiration of the last
to expire of such terms of imprisonment.
The Criminal Law Amendment Act, 1968-69,
also amended the Penitentiary Act by adding
section 25 (now section 25 of the Penitentiary
Act, R.S.C. 1970, c. P-6) as follows:
25. Where,
(a) under the Parole Act, authority is granted to an
inmate to be at large during his term of imprisonment, or
(b) a person who is at large by reason of statutory or
earned remission is subject to mandatory supervision
under the Parole Act,
his term of imprisonment, for all purposes of that Act,
includes any period of statutory remission and any period of
earned remission standing to his credit when he is released.
At this point, in order to better understand
the issue, the facts may be summarized as
follows:
1. On or before December 30, 1971, the
applicant was serving
(a) the original term of imprisonment for
which he was committed to the penitentiary
in 1969, and
(b) an additional term of 60 days imposed
on November 10, 1970, upon conviction of
an offence of escaping or attempting to
escape custody.
2. He would have been entitled to be com
pletely discharged from the penitentiary on
December 30, 1971, through benefit of statu
tory and earned remission of his sentences,
unless the provisions relating to mandatory
supervision under the Parole Act apply to
him.
3. The National Parole Board determined
that he should be subject to mandatory super
vision from December 30, 1971, until August
10, 1972, being the period of sentence for
which the applicant claims entitlement to
remission.
Counsel for the applicant submitted that by
virtue of section 14 (formerly section 11A
aforesaid) of the Parole Act the applicant is
deemed to be serving one sentence commencing
on the earliest date on which any of his sen
tences commenced, which was a date prior to
the enactment of section 11B, now section 15(1)
of the Parole Act; that the said section 15(1)
providing for mandatory supervision is not
retrospective and is inapplicable to the appli
cant by virtue of section 101(2) of the Criminal
Law Amendment Act; and also that section
15(1) is inapplicable because the applicant's
earned remission was only 60 days.
Counsel for the respondents submitted that
the fact is that the applicant was sentenced to
imprisonment in a penitentiary on November
10, 1970, which was after the date of August 1,
1970, fixed by the proclamation for the applica
tion of said section 11B; that he was released
from the penitentiary prior to the expiration of
his sentence as a result of remission, and the
remission exceeded 60 days; and consequently
he is subject to mandatory supervision upon his
release for the duration of his remission. Coun
sel also submitted that the respondents Trono
and Faguy did what they were required to do,
namely, release the applicant, and therefore the
remedy sought herein does not lie against them;
and that the remedy, if any, is against the Parole
Board or is a declaratory judgment'.
In my opinion the words "and the term of
such remission exceeds sixty days" in section
15(1) of the Parole Act do not refer only to
earned remission but refer rather to the total
remission, statutory and earned. In the appli
cant's case the term of remission did in fact
exceed 60 days, and he was released from
prison prior to the expiration of his sentence
according to law as a result of such remission.
It is also my opinion that the applicant was in
fact sentenced on November 10, 1970, to the
additional term referred to in his affidavit,
which was after the date of August 1, 1970,
fixed in the proclamation, and the said section
11B, now section 15(1) of the Parole Act,
applies in respect of him, and he is subject to
the mandatory supervision therein provided.
This is so even where, pursuant to section 14 of
the Parole Act, the terms of imprisonment to
which he was sentenced are deemed to be one
sentence consisting of a term commencing on
the earliest day on which any of the sentences
commenced.
Therefore there will be a declaration that the
applicant is subject to mandatory supervision
under the Parole Act for the period of statutory
remission and the period of earned remission
standing to his credit when he was released
from prison. In other respects the application
will be dismissed.
Regina v. Beaver Creek Correctional Camp ([1969] 1
O.R. 373) was cited in respect of certiorari available to an
inmate of a penitentiary in connection with disciplinary
action by the institutional head of a penitentiary.
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.