Judgments

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T-3562-74
Michael John Skitt (Plaintiff) v.
Solicitor General of Canada, National Parole Board and Commissioner of Penitentiaries (Defendants)
Trial Division, Walsh J.—Ottawa, September 18 and November 5, 1975.
Parole—Whether power in National Parole Board to revoke day parole—Whether loss of credit for statutory remission standing to inmate's credit upon release on day parole, or for time successfully served on day parole—Parole Act, R.S.C. 1970, c. P-2, ss. 2, 10, 13, 16, 18, 20, 21—Penitentiary Act, R.S.C. 1970, c. P-6, s. 22.
Plaintiff breached a condition of his day parole, 'and it was suspended on November 13, 1973. On February 18, 1974, he was remanded into custody, and his day parole was revoked by the National Parole Board on or about April 18, 1974. Pursu ant to the issue of a warrant, he was committed to penitentiary on May 1, 1974, under section 18 of the Penitentiary Act. Plaintiff claims that as a result of alleged illegal actions by defendants, he is being denied credit of 434 days of statutory remission as a result of the Canadian Penitentiary Service having considered for sentence computation purposes that he is serving a new sentence of 1795 days from May 1, 1974, and having credited him with one-quarter of this time off (449 days), whereas at the time of his release on day parole he was entitled to 883 days and has therefore lost credit for 434 days. He further claims that he has incorrectly been denied credit for approximately 50 days between the renewal of his day parole on September 25, 1973, and its suspension on November 13, 1973.
Held, plaintiff is credited with statutory remission standing to his credit at the time he was granted day parole, and with time served on day parole between its renewal on September 25, 1973 and purported suspension on November 13, 1973. The Manitoba Court of Appeal, in Regina v. Hales, has held that section 10 of the Parole Act provides a specific means of bringing day parole to an end by termination and if this has taken place there is no express or implied authority for depriv ing the day parolee of the statutory remission which would be allowed at the start of his original sentence. The Ontario Court of Appeal, in Carlson, with some reluctance appeared to follow, by stating that if Parliament did not make its intention suf ficiently clear in section 20, the benefit must go to the prisoner. The Marcotte case supports this view. While the power to "terminate" day parole in section 10(2) does not cancel out the right to "revoke" the parole of "any paroled inmate" under section 10(1)(e), and while the initial suspension under section 16(1), followed by the Board's decision to revoke under section 16(4) was proper, following which the second warrant was
issued with consequences (section 20(1)) which would include forfeiture of statutory remission standing to plaintiff's credit, as well as benefit of time spent on day parole before the breach, sufficient difficulty exists, having led the Manitoba Court to find, on almost identical facts, for the plaintiff, as did the Ontario Court on different facts. This Court considers itself bound.
In Re Zong [1975] F.C. 430; Auger v. Canadian Peniten tiary Service [1975] F.C. 330 and Howarth v. National Parole Board (1975) 18 C.C.C. (2d) 385, discussed. Mar- cotte v. Deputy Attorney General of Canada (1975) 19 C.C.C. (2d) 257, followed. Regina v. Hales (1975) 18 C.C.C. (2d) 240 and Carlson, Ont. C.A., November 27, 1974, agreed with.
ACTION. COUNSEL:
R. R. Price for plaintiff.
P. J. Evraire for defendants.
SOLICITORS:
Ronald R. Price, Kingston, for plaintiff.
Deputy Attorney General of Canada for defendants.
The following are the reasons for judgment rendered in English by
WALSH J.: This action was brought to trial on an agreed statement of facts, no witnesses being heard. The facts can be summarized as follows. Plaintiff was convicted of two counts of armed robbery and one count of breaking and entering, and sentenced to concurrent terms of ten years' imprisonment commencing on November 6, 1968. He remained in penitentiary until May 30, 1973 when he was granted a day parole by the National Parole Board which was to expire on September 25, 1973, one of the conditions being that he would report at the end of each day to a place designated by his parole supervisor. This day parole was extended from September 25, 1973 to December 25, 1973 but on or about November 9, 1973 he
failed to report and on or about November 14, 1973, according to information subsequently fur nished by him, he flew to Ottawa and from there to Nassau and eventually to London, England, then to Madison, Wisconsin, and finally to Toronto, Ontario where he turned himself in to the police. On or about November 13, 1973, day parole was suspended pursuant to section 16 of the Parole Act and on February 18, 1974 he was remanded into custody by a warrant issued under section 16 and signed at the City of Toronto by the provincial judge, C. W. Guest. On or about April 18, 1974 the National Parole Board revoked his day parole pursuant to section 16 of the Act and on April 22, 1974 a warrant was issued purporting to authorize his apprehension under section 18 of the said Act as a result of which on May 1, 1974 he was committed by Provincial Judge W. L. Camblin in Toronto, purportedly in accordance with section 18 of the Parole Act, to penitentiary to undergo a term of imprisonment pursuant to section 20 of the Act. He is at present an inmate of Matsqui Institution, a penitentiary near Abbots- ford, British Columbia, where he had been serving his sentence until his release on day parole.
The parties agree that if the contention of plain tiff is correct that there is no power in the Nation al Parole Board to revoke a day parole under the provisions of the Parole Act, and that the plaintiff cannot be required to undergo a term of imprison ment pursuant to section 20 thereof, he does not in the circumstances lose credit for statutory remis sion that stood to his credit upon his release on day parole, or for the time successfully served on day parole and the date of his release from custody on termination of sentence will be January 22, 1976. It is further agreed between the parties that if the contention of plaintiff is not correct, the National Parole Board has the power to revoke a day parole and that he can be required to undergo a term of imprisonment pursuant to section 20 of the Parole Act with consequent loss of statutory remission
that stood to his credit upon his release on day parole and loss of time served on day parole that he was serving, and the date of his release from custody on termination of sentence will be April 9, 1977.
Plaintiff's statement of claim sets out that by virtue of the Penitentiary Act' he was automati cally credited upon admission to the penitentiary with statutory remission amounting to one-quarter of the time for which he had been sentenced as time off subject to good conduct. Defendants admit this. Plaintiff also claims that at the time of the granting to him of day parole on May 30, 1973 there stood to his credit statutory remission amounting to 883 days comprising 913 days cred ited in the aforementioned manner less 30 days forfeited as a result of a disciplinary offence. This paragraph of the statement of claim is not admit ted by defendants but the actual calculations are not an issue in view of the termination of sentence and dates agreed upon in the agreed statement of facts. Plaintiff claims that as a result of what he alleges to be the illegal actions of defendants in their application of the Parole Act, he is being denied credit against his sentence for 434 days of statutory remission, as a result of the Canadian Penitentiary Service having considered for sen tence computation purposes that he is serving a new sentence of 1795 days from the first day of May, 1974, and having credited him with one- quarter of this time off pursuant to section 22 of the Penitentiary Act or a total of 449 days, where as at the time that he was released on day parole on May 30, 1973 he was entitled to 883 days and has therefore lost credit for the difference or 434 days. He claims also that he has been incorrectly denied credit for the period of approximately 50 days between the renewal of his day parole on or about September 25, 1973 and the suspension of his day parole on November 13, 1973. The para graphs of plaintiff's statement of claim with respect to these calculations are also denied by
R.S.C. 1970, c. P-6, s. 22.
defendants.
The sections of the Parole Act which have some bearing on the decision in the present case are as follows: Section 2 gives the following definitions:
"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.
10. (1) The Board may
(d) grant discharge from parole to any paroled inmate, except an inmate on day parole or a paroled inmate who was sentenced to death or to imprisonment for life as a minimum punishment; and
(e) in its discretion, revoke the parole of any paroled inmate other than a paroled inmate to whom discharge from parole has been granted, or revoke the parole of any person who is in custody pursuant to a warrant issued under section 16 notwithstanding that his sentence has expired.
(2) The Board, or any person designated by the Board, may, in its or his discretion, terminate the day parole of any paroled inmate.
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.
(2) Until a parole is revoked, forfeited or suspended, or except in accordance with the terms and conditions of a day parole, the inmate is not liable to be imprisoned by reason of his sentence, and he shall be allowed to go and remain at large according to the terms and conditions of the parole and subject to the provisions of this Act.
16. (1) A member of the Board or any person designated by the Board may, by a warrant in writing signed by him, suspend any parole, other than a parole that has been discharged, and authorize the apprehension of a paroled inmate whenever he is satisfied that the arrest of the inmate is necessary or desirable
in order to prevent a breach of any term or condition of the parole or for the rehabilitation of the inmate or the protection of society.
(4) The Board shall, upon the referral to it of the case of a paroled inmate whose parole has been suspended, review the case and cause to be conducted all such inquiries in connection therewith as it considers necessary, and forthwith upon comple tion of such inquiries and its review it shall either cancel the suspension or revoke the parole.
(5) An inmate who is in custody by virtue of this section shall be deemed to be serving his sentence.
18. (1) If any parole is revoked or forfeited, the Board or any person designated by the Board may, by a warrant in writing, authorize the apprehension of the paroled inmate.
20. (1) Where the parole granted to an inmate has been revoked, he 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 to him, to serve the portion of his term of imprisonment that remained unexpired at the time parole was granted to him, including any period of remission, includ ing earned remission, then standing to his credit, less any time spent in custody as a result of a suspension of his parole.
Section 17 and section 21 deal with forfeiture of parole as a result of the commission of an indict able offence by the person who is on parole and are not applicable in the present case, and since the Act makes a clear distinction between forfeiture of parole and revocation of parole, cases dealing with forfeiture are not applicable to the present case although the learned discussions of the Act in same are of some interest. Among the cases to which I was referred dealing with forfeiture are the cases of In re Zong [1975] F.C. 430, my previbus judgment in the case of Auger v. Canadi- an Penitentiary Service [1975] F.C. 330 and Richard Albert Carlson, a judgment of the Ontario Court of Appeal dated April 24, 1975.
Reference was also made to the Supreme Court judgment in the case of Marcotte v. Deputy Attor ney General of Canada (1975) 19 C.C.C. (2d) 257, a judgment of the full bench in which, how ever, there were four dissents. Moreover, as was pointed out in the Zong and Auger cases, this was decided on the basis of the law prior to the Crimi-
nal Law Amendment Act, 1968-69 and both Mr. Justice Dickson, in rendering the majority judg ment, and Mr. Justice Pigeon, in concurring there with, were careful to point out that it was depend ent on the proper construction of the Parole Act and of the Penitentiary Act as they stood at that time and before the amendment of the Parole Act which added in what is now section 20(1) the words "including earned remission, then standing to his credit, less any time spent in custody as a result of a suspension of his parole". As Mr. Justice Addy pointed out in the Zong case, the words "including earned remission" clearly indi cate that statutory remission is also forfeited as, in order to include something, there must be some other thing with which it can be included. In the case of Howarth v. National Parole Board (1975) 18 C.C.C. (2d) 385, also considered by the Supreme Court, which was concerned with the question of whether a decision of the Parole Board to revoke parole was of a purely administrative nature or not so that the Court was not called upon to decide whether statutory remission and earned remission standing to an inmate's credit at the time of his release on parole are lost upon revocation, Mr. Justice Beetz, who concurred in the majority decision in the Marcotte case under the old law, stated [at pages 400-4011:
It may be unfortunate that, under section 20(1) of the Parole Act, statutory remission for time served on parole by an inmate and earned remission standing to an inmate's credit at the time of his release on parole be lost automatically upon revocation, particularly since parole may be suspended and, presumably, revoked for reasons which are not necessarily connected with a breach of the terms or conditions of the parole. However, this in my view does not change the nature of the decision of the Parole Board when it revokes a parole granted to an inmate.
It would seem, therefore, that the decision of the Court might well have been different with respect to forfeiture of statutory remission under the present law.
In the present case we are not concerned with any distinction between earned remission and statutory remission but rather with the question of whether a distinction can be made with respect to day parole and what can be conveniently referred to as general parole. Two cases deal specifically with this issue, the first being a decision of the Manitoba Court of Appeal in Regina v. Hales 2 . In that case the Court first agreed with the Crown argument that the term parole in the Act means both general parole and day parole unless the contrary appears either expressly or impliedly, and also found that on revocation a general parolee is required to serve in custody the time he spent out of prison on general parole and is not entitled to credit of his original statutory remission. The Court, however, rejected the contention that sec tion 10(1) (e) is not limited to general parole and that section 20(1) is as appropriate to the effect of revocation of a day parole as it is to general parole, so that section 13 must be governed by section 20. Instead, the Court concluded that section 10(2) provides a specific means of bringing day parole to an end by termination and if this has taken place there is no express or implied authority for depriv ing the day parolee of the statutory remission which would be allocated to him at the start of his original sentence. An application was made by the Crown to the Supreme Court for leave to appeal this judgment and this application was refused although counsel for both parties appearing before me assured me that this was done on the basis of delay in the filing of the application without any discussion taking place with respect to the legal issues raised by the appeal.
Subsequently, in the Carlson case (supra) Mr. Justice Mackinnon, in rendering the judgment of the Ontario Court of Appeal, discussed the various sections of the Parole Act in issue (although it must be pointed out that the Carlson case was a forfeiture case, and not a revocation) and also the
2 (1975) 18 C.C.C. (2d) 240.
decision of the Manitoba Court of Appeal in the Hales case (supra) by which Lerner J., the Trial Judge in the Carlson case, considered himself to be bound. It is apparent that he did not wholly agree with this case for in referring to section 10(1) (e) he states:
Once again this on its face would appear to cover "day" parole as well as general parole.
He then goes on to say at pages 8-10 of his judgment:
The subsection of this section which has caused difficulty is s-s. 10(2). It states that the Board, or any person designated by the Board, may terminate the day parolé. The fact that this is a separate subsection of s. 10, rather than being under s-s. 10(1), has led to the argument that this is the only power that the Board has with relation to day parole so far as ending it is concerned, and thus it, in effect, limits the revocation power under s. 10(1)(e) to inmates on general parole.
Counsel for the Crown argued that the termination clause was just an added power given to the Board, or its designee, to allow the ending of day parole in certain cases, without the serious consequences that would result to the inmate if his parole were revoked. If, for example, a day parolee were taking a course at school or university which terminated through no fault of his, it would be most unfair to revoke his parole with the consequent loss of statutory remission. If the day parolee were consistently returning late from his day parole, the Board might wish to terminate the day parole and that in itself would be sufficient punishment or corrective action. Termination is an expeditious and fair way of handling such problems. However, if, as Crown counsel put it, the day parolee "jumped" his parole while he was at large, is there any reason he should be immune from the punitive consequences that an inmate on general parole would suffer if he committed the same act? The short answer, logically, appears to be "no", but logic and statutory language do not necessarily go hand in hand on all occasions.
The terminating power can also be used to explain the deeming clause of s. 13(1). As such day paroled inmate is "deemed" to be serving his term of imprisonment in the place of confinement from which he was released on day parole, there is no need, on termination, to go through the cumbersome procedure of warrants of apprehension and recommitment.
S. 13(1), which the Manitoba Court of Appeal felt was inconsistent with the terminology of the revocation section, by its terms appears to consider that day parole is covered by the term "unrevoked and unforfeited". (This court has held that day parole can be forfeited: In re Kerr, released May 5th, 1975, as yet unreported; as has the British Columbia Court of Appeal In re Davidson, released December 20th, 1974, as yet unreport- ed.) The section refers to day parole specifically, and there is no
suggestion therein that the preceding words "while the parole remains unrevoked and unforfeited" do not apply to such parole.
He then analyzes section 16, pointing out that it is a procedure which has to be gone through in order first to suspend parole and subsequently either to cancel it or refer the case to the Board, that once again the wording of the introductory subsection refers to "any parole" and that in the case before him there was first of all a suspension and then a revocation. This is the procedure which was adopt ed in the present case. Section 18(1) again refers to "any parole" being "revoked or forfeited".
The learned Judge then concludes at pages 11, 12 and 13:
S. 20(1), which establishes the serious consequences which flow from any revocation of parole, is the fundamental section with which we are concerned in this appeal. It is, unhappily, not clear in its terminology or intention when read with s. 13(1), however clear the earlier sections may be. If it is capable of being reasonably interpreted so as not to apply to inmates on day parole, then, as it is clearly a penal section, the interpreta tion most favourable to the subject must be given it. To repeat the opening words of the subsection:
Where the parole granted to an inmate has been revoked, he 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 to him ...
As already stated, the Court of Appeal for Manitoba in Regina v. Hales, supra, felt that these words were inconsistent with the deeming clause of s. 13(1), whereby the day parolee is "deemed" to be continuing to serve his term of imprisonment in the prison from which he was released on day parole. I have already pointed out that, on termination of day parole, as a result of the deeming clause nothing further is required to ensure that the paroled inmate is returned to his original place of confinement. However s. 20 is open to the interpretation that it is only applicable to general parole because it is specific in its terminology as to the necessity of "recommitment" to the place of confinement from which the inmate was allowed to go and remain at large. Such "recommitment" is not necessary for day parolees, who are deemed to be still "committed" to their place of imprisonment.
S. 20(1) can, of course, be interpreted as referring to the "de facto" commitment of inmates once their parole, whether general or "day", has been revoked. Certainly there are situa-
tions in which s. 20(2) could be made applicable to day parolees who have "jumped" parole. However Parliament has not made its intention clear in s. 20, and I must give the benefit of that ambiguity to the respondent in this appeal.
In the Zong case (supra), although Mr. Justice Addy was dealing with forfeiture of parole for commission of an offence bringing sections 17 and 21 of the Act into play rather than section 20, the consequences of revocation under section 20 are substantially the same as those of forfeiture under section 21, and he states at pages 441-442:
If forfeiture is an automatic penalty applicable to a general parolee whose parole cannot, unless a criminal offence is com mitted, be revoked or terminated, except by the Board and/or for a specific reason, there is no reason that I can see why a day parolee, whose parole is much more tenuous and can be ter minated at the discretion of a person nominated by the Board, should not be equally subject to forfeiture on the commission of the same criminal offence.
If forfeiture applies to both types of parolee, then there can be no reason why section 21, which provides for loss of remis sion, should not be applicable in full against the day parolee as well as a general parolee. When a general parolee, by virtue of section 17(1), forfeits his parole, it is clear that under section 21(1) he loses not only his statutory remission and his earned remission but he must re-serve that portion of the term of his imprisonment which remained unexpired at the time his parole is granted and which undér section 13(1) he is otherwise deemed to have served. In other words, the term of imprison ment which is deemed to have been served whilst on parole is cancelled out and he must re-serve the portion of the term that remains unexpired at the time his parole was granted (refer section 21(1)(a)). He is, in effect, serving a portion of his term of imprisonment twice; this is clearly stipulated in the section. There can be no argument therefore that there is discrimination against the day parolee who must do exactly the same thing in the event of his committing a criminal offence as provided for in section 17(1). Altogether apart, however, from these particu lar considerations is the fact that section 21(1) opens with the following words: "When any parole is forfeited by convic tion ...." The words "any parole" would have no meaning whatsoever, in my view, unless it meant both types of parole mentioned in the Act. I therefore conclude that as to laws of remission a day parolee is in exactly the same position as a general parolee when he commits an offence punishable for a term of two years or more whilst on parole. This was the view unanimously adopted by the Court of Appeal of British
Columbia in the above-mentioned Davidson case.'
He then discusses the Hales case and attempts to distinguish it on the basis that it was dealing with revocation and not automatic' forfeiture, stating:
It seems to be quite logical that on mere termination of his day parole the inmate should not thereby lose his statutory remis sion since day parole can be terminated at any time at the discretion of the person authorized to do so. The Court of Appeal of British Columbia considered the Hales case (supra) and carefully made the distinction between termination of a day parole under section 20 and forfeiture of same under section 21.
Dealing with the period of the eight days during which Zong was on day parole before he forfeited it as a result of committing a subsequent offence, he makes an attempt to reconcile section 21(1) of the Parole Act with section 13(1), and the same reasoning would apply to considering section 20(1) with section 13(1). He states at pages 444-445:
Section 21(1) of the Parole Act provides that, when the parole is forfeited by conviction for an indictable offence, the portion of the term which remains "unexpired at the time his parole was granted" is to be added to the sentence. On the other hand, section 13(1) provides that, as long as the parole remains unrevoked and unforfeited, he shall be deemed in the case of a day parole to be continuing to serve his term of imprisonment in the place of confinement in which he was released on parole. Section 13(1) reads as follows:
13. (1) The term of imprisonment of a paroled inmate shall, while the parole remains unrevoked and unforfeited, be deemed to continue in force until the expiration thereof according to law, and, in the case of day parole, the paroled inmate shall be deemed to be continuing to serve his term of imprisonment in the place of confinement from which he was released on such parole.
At first blush, it might seem difficult to reconcile both these provisions. On further consideration, however, it seems clear that the purpose of section 13(1) is to provide for the effects of a parole: it provides for an alternative method of serving a sentence; the section states that whilst a parole remains in effect it is equivalent to serving a regular period of imprison
3 In Re Ralph Douglas Davidson (1974) 22 C.C.C. (2d) 122.
ment. However, section 21(1) provides severe penalties for a parolee who, whilst on parole, commits a criminal offence and whose parole is thereby forfeited by virtue of section 17(1); it cancels out all previous remissions, retroactively cancels out the term served on parole and clearly and specifically imposes on the inmate the obligation of serving the sentence as it existed and "as of the time his parole was granted."
It is true that, when a penal statute is ambiguous, the interpretation should be adopted which is the most favourable to the person who is subject to the statute. But, this principle is subordinate to the principle that where two sections of a statute appear to conflict then, wherever possible, an interpretation must be adopted which would give effect to all of the words of both sections rather than an interpretation which would oblige one to ignore certain words. If the word "while" in section 13(1) is considered as including the concept of condition as well as of time such as one might find in the expression "as long as and providing that" then full force and effect can be given to all of the words of section 21. On the other hand, if the strict notion of time is attributed to the word "while" in section 13(1), and if as a result section 13(1) is interpreted as meaning that the paroled inmate would have an irrevocable right to count as time served in imprisonment all time spent on parole previous to the time that the parole is forfeited, then no meaning whatsoever, in my view, can be given to the words ".. . that remained unexpired at thé time his parole was grant ed ..." found in section 21(1)(a).
I therefore conclude that no credit can be afforded the applicant for the eight days which he served after a parole was granted to him until the time he committed the offence. This was the conclusion to which Craig J., the Trial Judge in the Davidson case above referred to, arrived at. His view was upheld by the decision of the Court of Appeal of British Columbia.
I would be inclined to adopt this reasoning but for the fact that I now have as authority to the contrary not only the Hales case (supra) of the Manitoba Court of Appeal but also the Carlson case (supra) of the Ontario Court of Appeal. While the latter, as I have already indicated, appeared to follow the Hales case with some reluc tance, the conclusion nevertheless was to the effect that if Parliament did not make its intention suf ficiently clear in section 20, then the benefit of the ambiguity must be given to the prisoner. A similar statement was made in the Marcotte case (supra) at page 262 where Mr. Justice Dickson stated:
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.
While I am of the view that the power to "terminate" day parole provided in section 10(2) of the Act does not cancel out the right to "revoke" the parole of "any paroled inmate", under section 10(1)(e), that the initial suspension under section 16(1) followed by the decision of the Board to revoke the parole under section 16(4) was the proper procedure, following which the second warrant was issued with the consequences set out in section 20(1) which would include forfeiture of statutory remission standing to plaintiff's credit as well as the benefit of the time he spent on day parole before his breach of it, there nevertheless appears to be sufficient difficulty in interpreting and reconciling the various sections of the Act to have led the Manitoba Court of Appeal to a finding favourable to plaintiff on almost identical facts in the Hales case (supra), and the Ontario Court of Appeal, although on somewhat different facts dealing with forfeiture rather than revoca tion, to find for the plaintiff in the Carlson case (supra) on the basis that the interpretation of an ambiguous penal statute of this nature must be made in favour of plaintiff. Therefore, unless and until the Carlson case is appealed, I consider myself bound by the findings of these two judgments. 4
Judgment will therefore be rendered in favour of plaintiff declaring that he is entitled to be credited with all statutory remissions that stood to his credit at the time that the day parole was granted to him on or about May 30, 1973 and that he is entitled to be credited with the time served on day parole between the renewal of his day parole on or about September 25, 1973 and the purported sus pension of his day parole on November 13, 1973, all with costs.
4 I have now been advised that leave to appeal the Carlson case was refused by the Supreme Court.
 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.