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was remanded into custody, and his day parole was revoked by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.