A-8-73
The National Parole Board (Appellant)
v.
Norman William Edmonds (Respondent)
Court of Appeal, Jackett C.J., Pratte and Ryan
JJ.—Ottawa, June 7, 1974.
Parole—Offence while on parole—Conviction resulting in
forfeiture of parole—No suspension or revocation of
parole—No credit for time in custody before conviction—
Parole Act, R.S.C. 1970, c. P-2, ss. 6, 10, 13, 16, 17, 21 and
amendment R.S.C. 1970 c. 31 (1st Supp.), s. 2.
The respondent, an inmate of the Canadian Penitentiary
System, was granted parole on April 22, 1968, for the period
ending October 13, 1970. On February 3, 1970, he was
arrested on a charge of uttering, and remanded in custody,
where he remained for 106 days until released on bail.
Convicted of uttering, he was sentenced to 15 months
consecutive to his previous sentence. His conviction of an
indictable offence punishable by imprisonment for two
years or more, resulted, under section 17(1) of the Parole
Act, in forfeiture of his parole. The respondent complained
that in computing his new term under section 21 of the Act,
he was not credited with the 106 days spent in custody. This
claim was accepted by the Trial Division which granted
declaratory relief on the ground that the forfeiture effected
revocation of parole within section 21(1)(d) so as to entitle
the respondent to credit for the time spent in custody.
Held, allowing the appeal of the Board, there was a
distinction between "forfeiture" of parole, effective against
the respondent under section 17(1), and "suspension or
revocation", the phrase in section 21(1)(d). The respond
ent's parole had not been "suspended" under the powers
described in sections 16, 20; nor had it been "revoked" in
accordance with sections 10 and 16. Hence the respondent
was ineligible for relief under section 21(1 )(d).
APPEAL.
COUNSEL:
E. R. Sojonky for appellant.
K. E. B. Cartwright for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Cartwright & Cartwright, Kingston, for
respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: I should like to add a comment
to the Reasons for Judgment delivered by my
brother Ryan on behalf of the Court.
I would entirely agree with the reasoning
whereby the Associate Chief Justice reached his
result favourable to the respondent if it were
not for the fact that a study of the Parole Act, in
my view, establishes a careful use in that statute
of the words "suspended" and "revoked" in
senses that are inconsistent with his conclusion.
I agree with him, also, that there seems to be an
underlying injustice in the matter on the view
that we have taken. It seems to me, however,
that the fault, if any, is not in the Parole Act but
in the statutory law under which a person may
be in custody awaiting trial for a substantial
period in respect of which he may, apparently,
be given no credit when the term of imprison
ment that he is to serve is being computed.
* * *
The following are the reasons for judgment
delivered orally in English by
RYAN J.: This is an appeal from a judgment of
the Trial Division granting declaratory relief to
the respondent.
The respondent, Norman William Edmonds,
who was an inmate of Joyceville Institution, a
part of the Canadian Penitentiary System, when
the proceedings in this matter were begun in the
Trial Division of this Court, had been paroled
on April 22, 1968, under a previous sentence of
four years. His parole was to last until October
13, 1970. On February 3, 1970, he was arrested
and charged with uttering. He was remanded in
custody where he remained until released on
bail on May 19, 1970, a period of 106 days. On
June 26, 1970, he was convicted of the offence
charged and was sentenced to fifteen months
consecutive to his previous sentence. It is
agreed that the offence of which he was con
victed is indictable and punishable by imprison
ment for a term of two years or more.
A parolee may, as did Mr. Edmonds, commit
and be convicted of an offence while he is on
parole. A consequence is that his parole is for
feited if the offence is indictable and punishable
by two or more years imprisonment. What is
more, the forfeiture is retroactive to the day on
which the offence was committed. This is pro
vided for by section 17(1) of the Parole Act
which reads:
17. (1) Where a person who is, or at any time was, a
paroled inmate is convicted of an indictable offence, punish
able 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 forteiture shall be deemed to
have taken place on the day on which the offence was
committed.
The convicted parolee, not having fully satis
fied his previous sentence, now faces a new
sentence. This situation is governed by section
21 of the Parole Act: under it the convicted
parolee is liable to a term of imprisonment,
commencing when the sentence for the indict
able offence is imposed, computed in accord
ance with a formula stipulated in subsection (1)
of the section. Section 21(1) reads:
21. (1) When any parole is forfeited by conviction for an
indictable offence, the paroled inmate shall undergo a term
of imprisonment, commencing when the sentence for the
indictable 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 indict
able offence is imposed.
The purpose of this section must, we think, be
assessed having in mind that the term of impris
onment of a parolee is deemed by section 13 of
the Act to continue in force until its expiration
according to law, so long as the parole remains
unrevoked and unforfeited; accordingly, the
parolee's unexpired term of imprisonment is
being reduced each day he is free. A major
purpose of section 21 appears to be to deprive
the convicted parolee of the benefit, not only of
the time he earned while he was at large after he
committed the indictable offence, but also of
the time earned from the day the parole was
granted.
In his affidavit of October 20, 1970, submit
ted in support of the motion which initiated
these proceedings, Mr. Edmonds says that he
was advised that he had been re-committed as
of June 26, 1970, for the period of "849 days
remanet of parole" plus the fifteen months for
his uttering conviction. By "849 days remanet
of parole" he must mean for the period of 849
days left of the term under which he had been
paroled. We fail to see what else he can mean.
He complains, however, that, in the computa
tion of this term, he was not given credit for the
106 days he spent in custody pending trial on
the uttering charge before he was released on
bail. His claim is really based on paragraph (d)
of subsection (1) of section 21. Possibly it
would be as well to quote the paragraph again.
In computing the term of imprisonment, the
convicted parolee is entitled to credit for "any
time before conviction for the indictable
offence when the parole so forfeited was sus
pended or revoked and he was in custody by
virtue of such suspension or revocation".
For present purposes, the critical terms in this
paragraph are "suspended" and "revoked".
Suspension of parole is dealt with in section
16 of the Act. Parole may be suspended by a
member of the Board or by a person designated
by the Board for any of the reasons set out in
the section. The suspension is effected by war
rant authorizing the apprehension of the parolee
who must be brought before a magistrate as
soon as conveniently may be done. The magis
trate in turn must remand him in custody until
the suspension is cancelled or the parole is
revoked or forfeited. The person issuing the
warrant of suspension or another person desig
nated by the Board must forthwith review the
case, and within fourteen days of the remand,
either cancel the suspension or refer the case to
the Board. The Board in its turn must review
the case and cause to be conducted all such
inquiries as it considers necessary. Forthwith,
on completion of the inquiries and its review,
the Board must cancel the suspension or revoke
the parole. Obviously, the suspended parolee
may be in custody for a substantial period of
time while these reviews and inquiries are being
carried out, and subsection (5) of section 16
provides that he shall be deemed to be serving
his sentence during this period. Section 20 of
the Act requires that credit be given for any
time spent in custody as a result of suspension
of his parole when a parolee whose parole is
revoked is re-committed to penitentiary. Con
sistently, section 21(1)(d requires that credit be
given for such time in computing the term of
imprisonment of an inmate whose parole is for
feited under section 17. Obviously, Mr.
Edmonds, whose parole had not been suspend
ed, was not entitled to any credit by virtue of
suspension of parole.
The Parole Board has exclusive jurisdiction
and absolute discretion to revoke parole under
section 6 of the Parole Act. Section 10(1)(e)
vests in the Board specific discretionary power
for this purpose. A parole inmate whose parole
is forfeited under section 17 may possibly have
had his parole revoked under section 16 or
otherwise under section 10 at some time prior to
his conviction. Section 17 would apply to such
case because it applies not only to a person who
is on parole, but to anyone who at any time was
a paroled inmate if the indictable offence is
committed after his grant of parole and before
he is discharged from parole or the expiry of his
sentence. Thus, under section 21(1)(d), a
parolee whose parole had, been revoked before
his conviction for the indictable offence would
be entitled to credit for time spent in custody by
virtue of the revocation. Again, Mr. Edmonds is
not within this category because his parole was
never revoked.
In truth, Mr. Edmonds served the 106 days in
custody while awaiting trial on the charge of
uttering. His time in custody had nothing to do
with a suspension or revocation of parole or,
indeed, with its forfeiture.
For reasons set out in his judgment, the
Associate Chief Justice decided that forfeiture
of Mr. Edmonds' parole under section 17 oper
ated as a revocation under section 21(1)(d). We
are of the opinion, however, that suspension,
revocation and forfeiture are distinct under the
Act, and it is only when a person, whose parole
is forfeited because of section 17, has served
time in custody by virtue of a suspension or
revocation that he is to be given credit in com
puting his term of imprisonment under
section 21.
That disposes of the only grievance that has
been put forward on behalf of the respondent.
We have, therefore, concluded that the appeal
should be allowed, the judgment of the Trial
Division should be set aside and the application
for declaratory relief should be dismissed.
* * *
PRATrE 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.