T-3891-78
Norman Carleton MacLean (Plaintiff)
v.
Attorney General of Canada, Solicitor General of
Canada and Commissioner of Penitentiaries
(Defendants)
Trial Division, Cattanach J.—Ottawa, May 25
and June 15, 1979.
Parole — Recalculation of term of imprisonment following
revocation of day parole — Day parole granted before but
revocation occurring after amendment providing for new
method of calculating time to be served by paroled inmate
where parole has been revoked — Recalculation resulting in
plaintiff's serving more time — Plaintiff seeking declaration
that: (1) revocation was beyond authority of National Parole
Board and without legal effect concerning computation of term
of imprisonment, (2) plaintiff was entitled to all statutory
remission standing to his credit on the day before day parole
was revoked, (3) plaintiff was entitled to credit for days served
on day parole — Parole Act, R.S.C. 1970, c. P-2, s. 20(2) as
amended by Criminal Law Amendment Act, 1977, S.C. 1976-
77, c. 53, s. 31 — Penitentiary Act, R.S.C. 1970, c. P-6, s.
22(1).
The recomputation of plaintiffs term of imprisonment, after
the National Parole Board's revocation of his day parole, was
carried out pursuant to the newly enacted section 20(2) of the
Parole Act—which included a provision that time served on
day parole could not be credited—and resulted in a net loss of
193 days for the plaintiff. Plaintiff seeks a declaration that: (1)
the revocation of plaintiffs day parole was beyond the National
Parole Board's jurisdiction and was without legal effect with
respect to the computation of plaintiff's term of imprisonment;
(2) plaintiff is entitled to be credited with all statutory remis
sion standing to his credit on the day before he was granted day
parole; and (3) plaintiff is entitled to credit for the days served
on day parole.
Held, the action is dismissed. The revocation of plaintiff's
day parole was not beyond the jurisdiction of the National
Parole Board and is not a nullity. It has been held that the
amendments to the Parole Act effective October 15, 1977,
eliminated any ambiguity and its attendant concept of "con-
trary intention" that earlier case law had established. Plaintiff
argued unsuccessfully that that amendment to section 20 of the
Parole Act should not be interpreted so as to affect the
statutory remission standing to plaintiffs credit on the day on
which parole was granted him because to do so would make the
section retrospective in operation and contrary to the presump
tion against interference with vested rights in the absence of an
expressly disclosed intention to do so or a plain unavoidable
inference of that interference. This is not retrospective legisla
tion but rather prospective legislation operating with respect to
all persons who have been paroled either before or after the
date on which the amendments were proclaimed effective.
Parliament, in effect, is substituting a new method of calculat
ing the time remaining to be served by a paroled inmate whose
parole has been revoked. .There is a change of the rules in
mid-stream for a person paroled before the effective date of the
change in method of computation of that time and whose parole
was revoked after that date. Section 20(2) is applicable to the
plaintiff. The words in that section are "any parole"; no
distinction is made between day parole and general parole. It
has been decided that day parole can be revoked. Section 20(2)
provides that it is applicable when parole was granted prior to
its coming into force. Finally, it has been established that a
parolee whose parole was revoked after section 20(2) came into
effect is subject to that section.
Zong v. The Commissioner of Penitentiaries [1976] 1 F.C.
657, followed. Jackson v. The Queen [1979] 1 S.C.R. 712,
followed. R. v. Hales (1974) 18 C.C.C. (2d) 240, distin
guished. Ex parte Carlson (1975) 26 C.C.C. (2d) 65,
distinguished.
ACTION.
COUNSEL:
A. S. Manson for plaintiff.
A. S. Fradkin for defendants.
SOLICITORS:
A. S. Manson, Kingston, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
CATTANAcx J.: The plaintiff, who is an inmate
of the Pittsburgh Institution, a Canadian peniten
tiary in the Township of Pittsburgh, County of
Frontenac, in the Province of Ontario, by his
statement of claim seeks a declaration that:
(1) a) the revocation of the plaintiffs day parole on November
4, 1977 by the National Parole Board was beyond the
jurisdiction of that Board, and
b) that revocation has no legal effect with respect to the
computation of the plaintiffs term of imprisonment;
(2) the plaintiff is entitled to be credited with all statutory
remission standing to his credit on September 19, 1977 (i.e.,
865 days) the day that the plaintiff was granted day parole; and
(3) the plaintiff is entitled to credit for the days served on
parole between September 19, 1977 and October 15, 1977.
Prior to trial the solicitors for the respective
parties agreed upon a statement of all facts rele
vant to this action.
That agreement, which extracts most of the
facts from the pleadings but with supplementary
circumstances, reads:
AGREED STATEMENT OF FACTS
The parties hereto, by their solicitors, agree that the following
is a statement of all facts relevant to this action:
1. The Plaintiff is an inmate of Pittsburgh Institution, a peni
tentiary institution operated by the Canadian Penitentiary Ser
vice in the Township of Pittsburgh, County of Frontenac, in the
Province of Ontario.
2. The Defendant Attorney General of Canada is the repre
sentative of the Crown in right of Canada, answerable in
actions for declaratory relief brought under Section 18 of the
Federal Court Act, R.S.C. 1970 (2nd Supp.), Ch. 10, against a
"federal board, commission or other tribunal" as defined in
Section 2 of the said Act.
3. The Defendant Solicitor General of Canada is charged
under the Department of the Solicitor General Act, R.S.C.
1970, Ch. S-12, with the management and direction of the
Department of the Solicitor General, and by virtue of the said
Act, the duties, powers and functions of the said Solicitor
General of Canada extend to and include all matters over
which the Parliament of Canada has jurisdiction relating to
penitentiaries and parole, not by law assigned to any other
department, branch or agency of the Government of Canada.
4. The Commissioner of Corrections (formerly known as the
Commissioner of Penitentiaries) is appointed by the Governor
in Council pursuant to the authority conferred by the Peniten
tiary Act, R.S.C. 1970, Ch. P-6, and the amendments thereto,
and has, in accordance with the said Penitentiary Act, and
under the direction of the Solicitor General of Canada, the
control and management of the Canadian Penitentiary Service
and all matters connected therewith.
5. The Plaintiff was sentenced to a term of ten years' imprison
ment, commencing on or about the 27th day of September,
1966, pursuant to a conviction in the City of Brantford, in the
Province of Ontario, for the offence of robbery.
6. The Plaintiff between September 27, 1966 and January 19,
1972 spent varying periods of time in Kingston Penitentiary
and in Joyceville Institution, both penitentiary institutions in
the Province of Ontario, and remained throughout this period
in close custody in one or other of the said penitentiary
institutions, excepting only for short periods on temporary
absences granted to him from time to time during the period
aforesaid.
7. On or about the 19th day of January, 1972, the Plaintiff was
granted a parole by the National Parole Board, pursuant to the
provisions in that regard contained in the Parole Act, R.S.C.
1970, Ch. P-6 [sic] and the amendments thereto.
8. On the 12th day of April, 1973 the Plaintiff was convicted
of the offence of theft in the City of Brantford in the County of
Brant, and was sentenced to a term of 5 years imprisonment
"consecutive to any sentence now being served".
9. As required by Section 17 of the Parole Act in force at that
time, the Plaintiff's parole was thereby forfeited, which forfeit
ure was deemed to have taken place on the 10th day of August,
1972, the alleged date of the commission of the offence.
10. On the 19th day of April, 1973, the Plaintiff appeared in
Provincial Court, Criminal Division, in the Municipality of
Metropolitan Toronto, County of York, Province of Ontario,
and was convicted of two offences, for which he was sentenced
to two years and six months respectively, to run concurrently to
all other sentences.
11. On or about the 18th day of May, 1976, the Plaintiff was
granted a day parole by the National Parole Board, pursuant to
the provisions in that regard contained in the Parole Act,
R.S.C. 1970, Ch. P-6 [sic] and the amendments thereto.
12. The aforesaid day parole was granted to the Plaintiff for a
period of 4 months and allowed the Plaintiff to leave Pittsburgh
Institution where he was incarcerated, for 12 days during each
month, in order to work.
13. A further 4 month period of day parole was granted to the
Plaintiff by the said National Parole Board on the 18th day of
September, 1976, which allowed the Plaintiff to leave the said
Pittsburgh Institution for 12 days during each month, in order
to continue his employment.
14. On the 19th day of January, 1977, the Plaintiff was
granted a further 4 month period of day parole, which allowed
him to leave Pittsburgh Institution on 5 days during each week,
from 0600 hours to 2300 hours, in order to continue his
employment.
15. The period of day parole mentioned in paragraph 14 above
was renewed by the National Parole Board on the 19th day of
May, 1977 and again on the 19th day of September, 1977,
subject to the same conditions and restrictions.
16. When the Plaintiff was granted day parole on the 19th day
of September, 1977, the statutory remission which stood to his
credit was 865 days.
17. On the 21st day of October, 1977, a person described as "a
person designated by the National Parole Board pursuant to
Section 16 of the Parole Act to suspend any parole", purported
to suspend the Plaintiff's. day parole.
18. The Plaintiff was not convicted of any criminal offences
during the period that he was released on day parole.
19. By an order dated the 4th day of November, 1977, the
Plaintiff's day parole was purportedly revoked by the National
Parole Board.
20. Subsequent to the purported revocation of the Plaintiff's
day parole the term of imprisonment to which he is subject was
re-computed by officers of the Canadian Penitentiary Service
by application of Section 20(2) of the Parole Act which was
enacted by Section 31 of the Criminal Law Amendment Act,
1977 Statutes of Canada 1976-77, Chapter 53, proclaimed in
force as of the 15th day of October, 1977.
21. The application of Section 20(2) of the Parole Act as
described in paragraph 20 above, resulted in subjecting the
Plaintiff to a fixed term of imprisonment of 1817 days com
mencing on the 4th day of November, 1977, the date upon
which his day parole had been purportedly revoked.
22. By application of Section 22(1) of the Penitentiary Act
R.S.C. 1970, Chapter P-6, the Plaintiff was credited with
statutory remission in the amount of 455 days based upon the
new fixed term of 1817 days.
23. Subsequent to the recomputation of the Plaintiffs term of
imprisonment as described in paragraphs 20, 21 and 22 above,
the Plaintiff applied to the National Parole Board pursuant to
Section 20(3) of the Parole Act, enacted by Section 31 of the
Criminal Law Amendment Act, 1977, and was re-credited with
217 days of the forfeited statutory remission.
24. The net loss to the Plaintiff as a result of the application of
Section 20(2) of the Parole Act to the re-computation of his
term of imprisonment upon the purported revocation of his day
parole is 193 days, that being the difference between the
statutory remission standing to his credit on the 19th of Sep-
tember, 1977, being 865 days, and the sum of the statutory
remission resulting from his new term upon revocation, being
455 days, plus the re-credit of forfeited statutory remission,
being 217 days, for a total of 672 days.
The calculation of the net loss to the Plaintiff may be more
clearly explained as follows:
Statutory Remission as of
September 19, 1977: 865 days
less: Statutory Remission
presently standing to
Plaintiffs credit as
follows:
(i) Credit on revocation
term— 455 days
(ii) Re-credit pursuant to
s. 20(3) of Parole
Act— 217 days
672 days 672 days
NET LOSS 193 days
25. Pursuant to the application of s. 20(2) of the Parole Act to
the calculation of Plaintiffs term of imprisonment, he has not
been credited with 26 days, that being the time he served on
day parole between the 19th of September, 1977 and the 15th
day of October, 1977.
26. The Plaintiff is presently in close custody in the aforesaid
Pittsburgh Institution, where he has been since the 21st day of
October, 1977.
27. The use of the word "purport" or any variety thereof with
respect to the suspension or revocation of the Plaintiff's day
parole is not to be construed as a [sic] admission by the
Defendants that the Parole Board did not have the jurisdiction
to, or did not, in fact make the said suspension or revocation.
The nub of the dispute, as it affects the plaintiff,
is neatly summarized in paragraph 24 of the
agreed statement of facts.
It is agreed that, as at September 19, 1977 the
day upon which a period of day parole was granted
to the plaintiff as outlined in paragraph 15 of the
statement of facts, he had to his credit 865 days of
statutory remission.
Section 20 of the Parole Act, R.S.C. 1970, c.
P-2, was amended by section 31 of the Criminal
Law Amendment Act, 1977, S.C. 1976-77, c. 53
proclaimed in force as of October 15, 1977.
Upon the revocation on November 4, 1977 of
the plaintiff's day parole granted on September 19,
1977 the remission was recalculated on the basis of
the amendment to section 20 of the Parole Act
effective October 15, 1977.
The statutory remission under section 22(1) of
the Penitentiary Act, R.S.C. 1970, c. P-6 was
computed as 455 days.
Under section 20 subsection (3) of the Parole
Act the Parole Board recredited 217 days to ; the
plaintiff which he had lost by virtue of the révoca-
tion of his parole.
This recomputation totals 672 days.
Because the plaintiff had formerly had 865
days' remission and in this recomputation he now
has 672 days he has lost 193 days' remission, or in
more appreciable time about six months and two
weeks.
Counsel for the plaintiff has indicated to me
that if his contentions are correct the plaintiff
would be mandatorily released from custody about
May 30, 1979 whereas if the defendants' conten
tions are correct the plaintiff would not be released
from custody until November 9, 1979 as alleged in
paragraph 10 of the statement of defence.
Since slightly more than five months of the
plaintiff's liberty is at stake the decision on the
rival contentions must be reached with expedition.
The first contention advanced by counsel for the
plaintiff is that the revocation of the plaintiff's day
parole on November 4, 1977 was beyond the juris
diction of the National Parole Board.
If counsel is right in this contention it follows
that the revocation of the plaintiff's day parole
would be a nullity and would have no effect what
soever on the computation of the time to be served
under his sentences of imprisonment.
It is this contention followed by the conse
quences thereof which inspired the first declara
tion sought by the plaintiff.
Counsel's contention in this respect is based on
two decisions.
The first decision is that of the Manitoba Court
of Appeal in Regina v. Hales (1974) 18 C.C.C.
(2d) 240 and the second is that of the Ontario
Court of Appeal in Ex parte Carlson (1975) 26
C.C.C. (2d) 65 which reached the same conclusion
as did the Manitoba Court of Appeal but for
different reasons.
Two other cases were prominent in the represen
tations by counsel largely for the interpretation of
the first two mentioned cases and the effect of the
amendments to the Parole Act which came into
force on October 15, 1977 thereon.
These cases are Zong v. The Commissioner of
Penitentiaries [1976] 1 F.C. 657 in which Mr.
Justice Le Dain speaking for the Federal Court,
Appeal Division, exhaustively and carefully
reviewed the pertinent authorities and Jackson v.
The Queen [1979] 1 S.C.R. 712 in which Mr.
Justice Dickson authoritatively reviews the deci
sions including that of Mr. Justice Le Dain.
As I appreciate the decision in the Hales case it
was that day parole could only be "terminated" as
provided for in section 10(1)(e) of the Parole Act
and not "revoked". There were no consequences
upon termination of a day parole other than that
the inmate is no longer on day parole but upon
revocation the inmate loses the statutory remission
standing to his credit.
In the Hales case the intention attributed to
Parliament must have been that different conse
quences flowed from identical acts depending on
whether the act was committed by a general
parolee or a day parolee.
Further it was held that because a day parolee is
deemed to be serving his imprisonment while on
day parole the revocation thereof with consequent
loss of time on day parole would result in the day
parolee serving that time twice by virtue of section
20 which could not have been the intention of
Parliament.
This is what Mr. Justice Dickson refers to in the
Jackson case as the "termination" and "contrary
intention" point in the Hales case.
In the net result it was held that an act or
breach of parole which could lead the Parole
Board to revoke a general parole that would result
in the loss of statutory remission could only lead to
the termination of day parole, if that same act or
breach were committed by a day parolee, without
loss of statutory remission under the original
sentence.
In Ex parte Carlson the Ontario Court of
Appeal reached the same conclusion as the
Manitoba Court of Appeal did in the Hales case
but for different reasons.
As I appreciate the decision in the Carlson case
it is that day parole can be suspended and revoked
pursuant to section 16 of the Parole Act but
section 20(1) of that Act providing for loss of
remission on revocation appears to have reference
only to general parole and not to day parole
because section 20(1) states that the inmate shall
be committed to the place of confinement. Section
13 (1) provides that in the case of an inmate on day
parole that parolee shall be deemed to be continu
ing to serve his time of imprisonment in the place
of confinement from which he was released on
parole so there was no need for him to be "recom-
mitted" as contemplated by section 20(1) on his
day parole being ended by the means available to
do so.
The Ontario Court of Appeal therefore found
there to be an apparent ambiguity. Having found
that there were two possible constructions of a
penal section in a statute it adopted the construc
tion which would avoid the penalty.
This is what Mr. Justice Dickson refers to in the
Jackson case as the "ambiguity" or the "recom-
mitment" point.
I think that the Carlson case, without expressly
saying so, disapproved the Hales case with respect
to the intention attributed to Parliament that day
parole could only be "terminated" and not
"revoked".
Subsequent to the decisions in Hales and Carl-
son, section 20 was amended with effect as from
October 15, 1977.
Section 20(1) formerly read:
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.
Under the section two elements must be present,
(1) revocation, and (2) recommitment, to result in
the loss of statutory and earned remission.
Section 20 as amended effective October 15,
1977 reads:
20. (1) Upon revocation of his parole, an 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 to him or to the corresponding place of confinement for
the territorial division within which he was apprehended.
(2) Subject to subsection (3), when any parole is revoked,
the paroled inmate shall, notwithstanding that he was sen
tenced or granted parole prior to the coming into force of this
subsection, serve the portion of his term of imprisonment that
remained unexpired at the time he was granted parole, includ
ing any statutory and earned remission, less
(a) any time spent on parole after the coming into force of
this subsection;
(b) any time during which his parole was suspended and he
was in custody;
(c) any remission earned after the coming into force of this
subsection and applicable to a period during which his parole
was suspended and he was in custody; and
(d) any earned remission that stood to his credit upon the
coming into force of this subsection.
(3) Subject to the regulations, the Board may recredit the
whole or any part of the statutory and earned remission that
stood to the credit of an inmate at the time he was granted
parole.
The amendments coming into force on that day
abolished forfeiture.
Under section 20(2) there is no mention of
"recommitment", as in subsection (1), but the
reference is to "when any parole is revoked". As
before an inmate whose parole is revoked, and that
must mean day or general parole, must serve the
portion of the term of his imprisonment that
remained unexpired at the time he was granted
parole including any statutory and earned remis
sion less the credits outlined in paragraphs (a) to
(d) of subsection (2). This is a change in the
computation of the time remaining to be served.
In the Zong case (supra) Mr. Justice Le Dain
while the question before him involved a matter of
"forfeiture" nevertheless found it necessary to
refer to and comment upon the effect of the Hales
and Carlson decisions.
He stated at page 662 that to appreciate the
issue before him:
... it is necessary to refer to the decisions which have held that
the provisions of the Act [section 10, section 13(1) and section
20] respecting revocation, as distinct from forfeiture, do not
apply to day parole. [I have inserted the sections in brackets.]
The cases to which Mr. Justice Le Dain referred
are, of course, the Hales case and the Carlson
case.
He said at page 662:
In those cases the Courts agreed that where the term "parole"
is found in the Act it means, unless the contrary appears
expressly or impliedly, both general parole and day parole, but
they concluded that in the case of the provisions respecting
revocation there was indication of a contrary intention or at
least of an ambiguity, the benefit of which should be given to
the inmate.
His reference to "contrary intention" is to the
Hales case and "ambiguity" is to the Carlson case.
He stated the proposition in the Hales case
arising from section 10 as follows [at page 662]:
In the Hales case the Court reasoned that since section 10 of
the Act made special provision for the termination of day
parole it impliedly excluded the application of revocation to it.
He has referred to the interpretation put on
section 13 (1) in the Hales case. This I take to be
that in the case of a 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 parole. If, on revocation
or forfeiture of day parole, the day parolee would
retain credit for time on day parole toward the
time of imprisonment by virtue of the deeming
provision of section 13(1), that the deeming provi
sion is not overborne by section 20. To construe
the section otherwise would result in the day
parolee serving the same time twice.
Mr. Justice Le Dain rejected this interpretation
by saying at page 663:
... section 13 must be construed to mean that provided the
inmate's parole is not revoked or forfeited he is deemed to be
serving his term of imprisonment while he is on parole, but
upon revocation or forfeiture he loses the benefit of this provi
sion and is required by the terms of section 20 or section 21, as
the case may be, to serve the portion of his term of imprison
ment that remained unexpired at the time his parole was
granted.
Thus the decision in the Hales case has been
effectively discarded in the Carlson case and in the
Zong case.
Mr. Justice Dickson so stated in the Jackson
case at page 727. He said, "The finding in Hales
of contrary intention was laid aside in Carlson and
in Zong."
In the Jackson case the question was whether
the amendments to the Parole Act effective Octo-
ber 15, 1977 altered the law as determined in
Hales and Carlson so as to render an inmate on
day parole subject to the provisions of the Parole
Act relating to the revocation of parole with conse
quent loss of remission standing to his credit when
parole was granted to him.
At page 727 Dickson J. stated that,
For the appellant to succeed he must show that either the
"termination" (s. 10(2)) point or the "recommitment" (s.
20(1)) point continues to be the law despite the enactment of
the new s. 20.
The "termination" (section 10(2)) point is the
Hales decision and the "recommitment" (section
20(1)) point is the Carlson decision.
As to the Hales decision he said also at page
727:
As to "termination", the 1977 amendments introduced an
important change. Forfeiture of parole has been abolished.
Forfeiture was held applicable to both "general" parole and
"day" parole. In the absence of forfeiture, there is only s.
10(1)(e) and s. 20, "revocation," or s. 10(2), "termination." To
exclude revocation of day parole from the 1977 amendments
would be, as Le Dain J. stated with respect to forfeiture in
Zong, at p. 666, "to accept a wholly improbable view of
Parliament's intention: that a day parolee should be able to
commit an indictable offence while on parole without any of the
consequences that would result from forfeiture where the same
offence is committed by a general parolee." In addition, as
earlier noted, the finding in Hales of contrary intention was
laid aside in Carlson and in Zong.
As to the Carlson decision he continued on
pages 727-728 to say:
I turn finally to the question of possible ambiguity in s. 20,
the rock upon which the case for the Crown foundered in
Carlson. As noted earlier, the new s. 20 separates out the
recommitment portion of the old s. 20 and puts it in s.s. (1).
The effect of revocation is now stated in s.s. (2) and is
applicable to "any parole". Must one read s.s. (1) as a condi
tion precedent to the exercise of power under s.s. (2), such that
s.s. (2) "is specific in its terminology as to the necessity of
`recommitment'?" Here, I think, the approach of Mr. Justice
Le Dain is apt. Having regard to the abolition of forfeiture and
its replacement by simple revocation, I do not think the refer
ence to "recommitment" in s. 20(1), taken in conjunction with
the new s. 20(2), can constitute such uncertainty that "real
ambiguities are found, or doubts of substance arise, in the
construction and application of [the] statute;" Marcotte v.
Deputy Attorney General for Canada ([ 1976] 1 S.C.R. 108) at
p. 115. One cannot find such ambiguity in the October 15,
1977 amendments as would deprive the Board of any power to
revoke day parole. In each case the Board is free to revoke or
terminate day parole.
Thus Mr. Justice Dickson says that the "con-
trary intention" in the Hales case does not apply
and that upon the amendments effective October
15, 1977 there is no longer any ambiguity.
This would have disposed of the present appeal
but for the alternative contention advanced by
counsel for the plaintiff before me. The same
contention was advanced before the Supreme
Court of Canada in the Jackson case. Incidentally
the same counsel who represented the appellant
before the Supreme Court also represented the
plaintiff before me.
At page 726 Mr. Justice Dickson outlined that
contention as follows:
Second, counsel argues that the purpose of the new s. 20 is to
confer a benefit upon general parolees and not to deprive day
parolees of a previously existing benefit. Here the appellant
adverts to the effects of both s. 20(2)(a) and 20(2)(d) upon a
day parolee. He submits that a day parolee under the new s.
20(2)(a) would lose credit for "any time spent on parole"
before the coming into force of the subsection. By reason of
Hales and Carlson, the Board was denied power to revoke day
parole and s. 10(2) gave no power to deny the inmate his
statutory remission, especially in view of the deeming provision
in s. 13(1). While that may be true, it will be noted that the
appellant's day parole began and ended after the coming into
force of s. 20, thus avoiding any need to use the "notwithstand-
ing" clause in s. 20(2). Additionally, the new s. 20 does confer
a benefit upon day parolees whose parole could formerly be
forfeited, as decided in Zong, Ex parte Davidson, ((1974), 22
C.C.C. (2d) 122 (B.C.C.A.)), and Ex parte Kerr ((1975), 24
C.C.C. (2d) 395 (Ont. C.A.)). The argument tends to run in a
circle. If revocation of day parole under the old s. 20 was not
permitted, then admittedly the day parolee would lose a benefit
in the transition. But, if the new s. 20 does permit revocation of
day parole, then s. 20(2)(a) would confer a benefit upon a day
parolee that he would otherwise lose. In any event, the argu
ment only applies to the transitional case where day parole was
granted before the coming into force of the subsection and
revoked afterwards. That is not this case.
As pointed out by Dickson J. in the Jackson
case the appellant was released on parole on Octo-
ber 27, 1977. On December 15, 1977 he was
arrested pursuant to the suspension of his day
parole and on December 28, 1977 the day parole
was revoked by the Board and the appellant was
committed to penitentiary. On being so committed
the time remaining for the inmate to serve was
calculated upon the basis of the amendments.
However all these salient events took place after
October 15, 1977, that is, both his parole and its
revocation.
In the present action the plaintiff was released
on day parole on September 19, 1977. The amend
ing legislation was proclaimed effective as of Octo-
ber 15, 1977. On October 21, 1977 the plaintiff's
day parole was suspended under section 16(1) of
the Parole Act and by order dated November 4,
1977 the Board revoked the parole.
Thus the present action is precisely within the
circumstances outlined by Dickson J. in which the
argument advanced on behalf of the plaintiff
would be applicable.
More explicitly that argument was that the
amendment to section 20 of the Parole Act effec
tive October 15, 1977 should not be interpreted so
as to affect the statutory remission standing to the
credit of the plaintiff on September 19, 1977, the
day upon which day parole was granted to him
because to do so would make the section retrospec
tive in operation and contrary to the presumption
against interference with vested rights both (that is
the retroactive effect and the presumption) in the
absence of an expressly disclosed intention to do so
or that the intention to do so is plainly manifested
by unavoidable inference.
Similarly it was contended that the plaintiff is
entitled to credit for 26 days served on parole
between September 19, 1977 and October 15,
1977 for the reason that to do otherwise would be
to give retroactive effect to the amendment to
section 20.
This is not a case of retrospective legislation but
rather the enactment of prospective legislation. It
is effective on October 15, 1977. The problem is to
what persons is this legislation applicable? In my
view the intention of Parliament implicit in the
language of the amendments to section 20 is that
the amendments are to operate with respect to all
persons who have been paroled either before or
after October 15, 1977 the date on which the
amendments were proclaimed effective.
Accepting that as so the contention on behalf of
the plaintiff is that as of the date upon which he
was paroled, September 19, 1977, he had a vested
right to 865 days' statutory remission with which
he was credited under section 22(1) of the Peni
tentiary Act on being received into penitentiary
and that right should not be varied or impaired.
It was Buckley L.J. who first said that most acts
of Parliament do, in fact, interfere with existing
rights. However the presumption that vested rights
should not be interfered with must yield to the
conclusion that the necessary implication that the
legislative intent was that such is to be done.
In effect what Parliament is doing here is sub
stituting a new method of calculating the time
remaining to be served by a paroled inmate whose
parole has been revoked. When a person who was
paroled before the effective date of the change in
the method of the computation of that time and
whose parole was revoked after that date then to
that person there is a change of the rules in
mid-stream but there is no doubt that Parliament
can do so.
The question is: has Parliament done this?
The contention by counsel on behalf of the
plaintiff was that the purpose of the introduction
of section 20(2)(a) giving credit for "any time
spent on parole after the coming into force of this
subsection" was to confer a benefit on general
parolees equivalent to that enjoyed by day parolees
and not to deprive day parolees of the advantage
theretofore enjoyed by them.
By virtue of new section 20(2)(a) a day parolee
would lose credit for any time spent on parole
before the coming into force of the subsection.
However section 20 as amended does permit revo
cation of day parole and as Mr. Justice Dickson
pointed out in the passage quoted above "s.
20(2)(a) would confer a benefit upon a day
parolee that he would otherwise lose."
It was the contention by counsel for the plaintiff
that Parliament did not direct its mind to the
detrimental consequence to a day parolee which
follows from the introduction of section 20(2)(a)
and therefore could not have intended that result
to follow. I do not follow how that assumption is
justifiable. After all a benefit is taken away and
another benefit is bestowed on a day parolee and
the ultimate result is that there is no distinction
between different classes of parolees but all
parolees are accorded the same treatment.
Subsection (2) of section 20 states that "when
any parole is revoked" the paroled inmate shall
serve the unexpired portion of his imprisonment
that remained when he was granted parole includ
ing any statutory and earned remission. There is
no distinction between a day parole and general
parole but the words are "any parole" and it is
decided by Mr. Justice Dickson in the Jackson
case that a day parole can be revoked.
Therefore section 20(2) is applicable to the
plaintiff.
That section also provides that it is applicable to
any paroled inmate "notwithstanding that he was
... granted parole prior to the coming into force
of this subsection". There is no justification for
reading the words "any parole" or "parole" as
meaning general parole only and not day parole
since the obvious intention is to make no distinc
tion between classes of parole with the same conse-
quences in the event of revocation of either day or
general parole.
Section 20(2) provides that it is applicable when
parole was granted prior to its coming into force.
Therefore even though the plaintiff was granted
parole prior to that date section 20(2) is applicable
to him by reason of that "notwithstanding"
provision.
As Mr. Justice Dickson pointed out in the Jack-
son case, a parolee whose parole was revoked after
section 20(2) came into effect is subject thereto.
For the foregoing reasons the plaintiff is not
entitled to any of the declaratory relief sought by
him and the action is dismissed with costs to the
defendants if demanded.
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.