Supreme Court of Canada
Howley v. Deputy Atorney General (Canada), [1977] 2 S.C.R. 45
Date: 1976-07-12
James Alex Howley (Plaintiff) Appellant;
and
The Deputy Attorney General of Canada (Defendant) Respondent.
1976: June 16; 1976: July 12.
Present: Laskin C.J. and Martland, Judson, Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Statutes—Interpretation—Ambiguity—Legislative history—Statutory remission of sentence—Revocation of parole—Penitentiary Act, 1960-61 (Can.), c. 53, s. 22 (now R.S.C. 1970, c. P-6, s. 22)—Parole Act, 1958 (Can.), c. 38, ss. 16, 21 (now R.S.C.1970, c. P-2, as amended by R.S.C. 1970 (1st Supp.) c. 31).
Appellant was sentenced, on November 21, 1965, to ten years imprisonment and, on admission to the penitentiary, was credited with one-quarter of the sentence as statutory remission, subject to good conduct. He served five and a half years until his parole on March 1,1971. On October 29, 1971, his parole was suspended, on May 12, 1972, he was convicted of theft and his parole subsequently forfeited. In March 1975 he was again released on mandatory supervision but this was suspended two months later. There were 903 days of statutory remission to his credit at the time of his release in 1971 which appellant claimed were improperly taken from him. On an application for habeas corpus it was held that appellant should have the benefit of the remission credited to his 1965 sentence as there was doubt and ambiguity which should be resolved in favour of the applicant. The Court of Appeal reversed.
Held: The appeal should be dismissed.
A person who is paroled after the 1969 statutory changes as to forfeiture of parole is subject to the conditions which they attach to parole. Section 21(1) of the Parole Act, which provides that statutory remission is to be lost on conviction for an indictable offence, does not alter remission credited prior to August 1969 and make it a deferred credit. Rather in the event parole is forfeited it imposes a penalty of loss of remission previously credited. The language is not fairly capable of two
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constructions and the question of resolving the issue by giving the benefit of the doubt to the appellant did not therefore arise.
Marcotte v. Dep. A.G. (Can.), [1976] 1 S.C.R. 108 distinguished; R. v. Dwyer, [1975] 4 W.W.R. 54 (B.C.S.C.); Ex parte Krachan (1975), 24.C.C.C. (2d) 114 (Ont. H.C.); Ex parte Spice (1975), 23 C.C.C. (2d) 141 (Ont. H.C.); R. v. Klepack (B.C.S.C), unreported; R. v. Fraser (C.A. Man.), unreported; St-Laurent-Dubé v. Sa Majesté La reine et J.P. Dugas (Que. C.A.), unreported; Zong v. The Commissioner of Penitentiaries, [1976] 1 F.C. 657; Howarth v. National Parole Board, [1976] 1 S.C.R. 453 referred to.
APPEAL from a judgment of the Court of Appeal for Ontario allowing an appeal from a judgment of Stark J. on a habeas corpus application. Appeal allowed.
R.D. Manes, for the appellant.
A.M. Garneau and L.S. Holland, for the respondent.
The judgment of the Court was delivered by
DICKSON J.—James Alex Howley is at present held in custody at the Toronto Gaol. On November 21, 1965, he was sentenced to ten years’ imprisonment for the offence of attempted robbery. As required by the Penitentiary Act, 1960-61 (Can.), c. 53, s. 22 (now R.S.C. 1970, c. P-6, s. 22) he was automatically credited upon admission to Collins Bay Institution, a penitentiary, with statutory remission amounting to one-quarter of the time for which he was sentenced, subject to good conduct. After serving five and one-half years he was paroled on March 1, 1971. On October 29, 1971, his parole was suspended. On May 12, 1972, he was convicted on a charge of theft over fifty dollars and later that month his parole was forfeited. In March, 1975, he was released from penitentiary and placed on mandatory supervision, which was suspended two months later and he was again incarcerated. The present proceedings were then commenced.
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The applicant’s complaint is that the statutory remission which stood to his credit at the time of his release on parole on March 1, 1971, totalling 903 days, was improperly taken from him upon forfeiture of the parole.
On the habeas corpus application the issue, Stark J. said, was whether the applicant had a vested right to the statutory remission granted him under s. 22(1) of the Penitentiary Act or whether, as the Attorney General contended, he had lost his statutory remission by reason of his subsequent conduct and the effect of changes in the Parole Act.
Section 22(1) of the Penitentiary Act provides for statutory remission in these words:
Every person who is sentenced or committed to penitentiary for a fixed term shall, upon being received into a penitentiary, be credited with statutory remission amounting to one-quarter of the period for which he has been sentenced or committed as time off subject to good conduct.
In November, 1965, at the time sentence was passed upon the applicant, s. 16(1) of the Parole Act, 1958 (Can.), c. 38, read as follows:
16. (1) Where the parole granted to an inmate has been revoked, he shall be recommitted to the place of confinement to which he was originally committed to serve the sentence in respect of which he was granted parole, to serve the portion of his original term of imprisonment that remained unexpired at the time his parole was granted.
The statutory provisions regarding forfeiture of parole were extensively altered by the Criminal Law Amendment Act, 1968-69 (Can.), c. 38.
Section 17(1) of the Parole Act, R.S.C. 1970, c. P-2 dealt with forfeiture of parole on conviction of an indictable offence punishable by imprisonment for two years or more:
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17. (1) Where a person who is, or at any time was, a paroled inmate is convicted of an indictable offence, punishable by imprisonment for a term of two years or more, committed after the grant of parole to him and before his discharge therefrom or the expiry of his sentence, his parole is thereby forfeited and such forfeiture shall be deemed to have taken place on the day on which the offence was committed.
The effect of forfeiture of parole is set out in s. 21(1) of the Act in the following terms (R.S.C. 1970 (1st Supp.), c. 31, s. 2):
21. (1) When any parole is forfeited by conviction for an indictable offence, the paroled inmate shall undergo a term of imprisonment, commencing when the sentence for the indictable offence is imposed, equal to the aggregate of
(a) the portion of the term to which he was sentenced that remained unexpired at the time his parole was granted, including any period of remission, including earned remission, then standing to his credit, and
(b) the term, if any, to which he is sentenced upon conviction for the indictable offence, and
(c) any time he spent at large after the sentence for the indictable offence is imposed except pursuant to parole granted to him after such sentence is imposed,
minus the aggregate of
(d) any time before conviction for the indictable offence when the parole so forfeited was suspended or revoked and he was in custody by virtue of such suspension or revocation, and
(e) any time he spent in custody after conviction for the indictable offence and before the sentence for the indictable offence is imposed.
The 1968-69 amendment effected a major change. In Marcotte v. The Deputy Attorney General for Canada[1], a majority of this Court, construing the earlier legislation, concluded that an
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inmate was entitled to credit for statutory remission when the unexpired portion of his original term of imprisonment was computed, pursuant to s. 16(1), following revocation of parole. The effect of the 1968-69 amendment was to require the inmate, upon parole revocation or forfeiture, to serve any period of remission standing to his credit at the time parole was granted.
Stark J. held that the applicant should be given full benefit of the statutory remission credited to his 1965 sentence. He described this statutory remission as a vested right in any inmate sentenced prior to August 26, 1969, the date upon which the amendment took effect. Stark J. felt that any other reading would give retrospective effect to s. 21(1) of the Parole Act, that there was doubt and ambiguity as to the effect of the amendment to the Act upon statutory remission credited to a prisoner sentenced prior to August 26, 1969, and that the matter should be decided in favour of the applicant.
An appeal was taken by the Attorney General. Mr. Justice Kelly delivered the reasons of a unanimous court. He held that:
Parliament, which has created parole, as well as having provided for the crediting to inmates, on admission, of statutory remission, has by clear language provided that the forfeiture of parole by the commission of certain indictable offences shall result in the violator being returned to custody to serve a sentence, the duration of which includes the period of statutory remission standing to the credit of the parolee at the time of his release.
The question at present before the Court, the effect of the 1968-69 amendment, has been considered in a number of cases and two divergent lines of authority have emerged. One representative view is to be found in such cases as R. v.
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Dwyer[2], (B.C.S.C.); Ex parte Krachan[3], (Ont. H.C.); Ex parte Spice[4], (Ont. H.C.); R. v. Klepack (B.C.S.C.) (unreported) and in the dissenting opinion of Freedman, C.J.M. in R. v. Fraser (unreported). These cases proceed generally on the footing that when an inmate is received into the penitentiary he has a real and immediate entitlement to the statutory remission, in the nature of a vested right, and Parliament should not be taken to have intended to divest him of that right except in clearest language. This view holds that the amending language is imprecise, that the entitlement can only be taken away by giving retrospective effect to s. 21(1) of the Parole Act and that the amendment is therefore not applicable to inmates who, at the time of the amendment, were entitled to statutory remission.
The other line of thought is reflected in cases such as St-Laurent-Dubé c. Sa Majesté La Reine et J.P. Dugas (C.A. Que.) (unreported); in the majority decision of the Manitoba Court of appeal in R. v. Fraser (unreported); in the decision of the Federal Court of Appeal in Zong v. The Commissioner of Penitentiaries[5], and in the decision of the Ontario Court of Appeal in the case at bar. The comprehensive and carefully reasoned judgment delivered by Mr. Justice Le Dain for the Court in Zong reflects such line of thought in the following passage (at p. 671):
It is obvious that section 21(1) is not operating retrospectively in so far as the forfeiture of parole is concerned, since the appellant was released on parole and committed the indictable offence giving rise to forfeiture after the section came into force. It is surely reasonable that when the appellant was released on parole he should be governed by the law respecting forfeiture of parole that was then in force. But the appellant argues that because the effect of that law would be to deprive him of a vested right to statutory remission he should be governed not by that law but by the earlier law respecting forfeiture that did not have the effect of causing an inmate to lose statutory remission. This would be to apply to the appellant a law respecting forfeiture of parole that was no longer in force when he was released
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on parole. It seems to me that this serves to emphasize that what is involved here is a provision of law that is directed to conduct that gives rise to a forfeiture of parole and not to the nature of the right to statutory remission to which the appellant became entitled at the time he was received into penitentiary following his conviction of rape. A statute is not retrospective in operation merely because it affects an existing right. As Buckley L.J. said in West v. Gwynne, [1911] 2 Ch. 1, at p. 12: “Most Acts of Parliament, in fact, do interfere with existing rights.”
The issue here is the effect of the forfeiture provisions with respect to a person sentenced before their enactment but paroled after their enactment. The resolution of that issue involves statutory construction. Marcotte, which also entailed statutory construction, is not dispositive, for several reasons. The legislation under consideration in Marcotte is not the legislation which the Court is now called upon to consider. Prior to August 26, 1969, the Parole Act (s. 16(1)) provided that upon revocation of his parole, the inmate would be recommitted to serve “the portion of his original term of imprisonment that remained unexpired at the time his parole was granted.” By the amendment of 1969 there was added, in s. 21(1), following the quoted words, the following—“including any period of remission, including earned remission, then standing to his credit.” The ambiguity which the majority of the Court found in the former s. 16(1) in Marcotte is noticeably absent in the new legislation. The new language removes any doubt as to what is intended.
We are not dealing here with the crediting of statutory remission but rather the effect on such credit of forfeiture of parole after the statutory changes. Clearly, a person who is paroled after the changes came into effect is subject to the conditions which they attach to parole. Thus, if a parolee commits an indictable offence punishable by a term of imprisonment of two years, he forfeits parole. The effect of forfeiture, as set out in the statute (s. 21(1)) is loss of statutory remission;
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that is, the person must serve the time remaining in his original sentence that was unexpired when parole was granted. This loss of statutory remission does not change the nature of statutory remission credited prior to August 1969 and make it a “deferred credit.” Rather, the statute provides, in effect, a penalty on forfeiture of parole in the loss of statutory remission previously credited.
As noted in Marcotte, the entitlement to statutory remission, though real and immediate, was by the terms of s. 22(1) of the Penitentiary Act subject to good conduct and therefore it is overstating the case to refer to it as a vested right. It was always subject to divestment for bad conduct. At the time of Marcotte, there were two ways by which an inmate might forfeit statutory remission: a disciplinary offence or an escape. By the time the applicant sought and was granted parole, Parliament had added a third means: commission of an indictable offence while on parole.
The position of the applicant relative to forfeiture of statutory remission must be determined by construing the pertinent legislation at the time of forfeiture of the parole. This was stated in Marcotte at p. 110:
The issue is whether a paroled inmate whose parole was revoked on August 29, 1968, thereby lost his entitlement to statutory remission standing to his credit at the time of his release on parole. The resolution of the issue depends on the proper construction, as of that date, (the legislation having since been amended), of s. 22(1) (3) (4), s. 24 and s. 25 of the Penitentiary Act, 1960-61 (Can.), c. 53… [emphasis added].
My brother Pigeon said at p. 115:
I agree with Dickson J.’s conclusion on his view that under the law in force when appellant’s parole was
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revoked this did not involve forfeiture of statutory remission standing to his credit.
Although the question now before the Court was not that which was faced in Howarth v. National Parole Board[6], it might be noted that in Howarth my brother Beetz said at p. 475:
It may be unfortunate that, under s. 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.
and I said at p. 468:
The gravity of the impact of revocation upon the rights of a parolee requires no emphasis. Upon revocation he is reincarcerated. He loses the statutory remission standing to his credit at the time of his release on parole (210 days in the case of Mr. Howarth) and he gets no credit for time served while on parole (779 days in the case of Mr. Howarth).
Howarth had been sentenced on February 25, 1969, and paroled on May 6, 1971. The parole was revoked on September 11, 1973. Like the applicant, Howarth was sentenced before the 1968-69 amendment and his parole was revoked after the amendment.
If the language of a statute creates real uncertainty, I think the person against whom it is being enforced is entitled to the benefit of doubt, but in the present case I do not think the language is fairly capable of two constructions. As to entitlement, the applicant received all that Marcotte accorded him. He was credited with the statutory remission, subject to good conduct, which s. 22(1) of the Penitentiary Act assured him; if his conduct
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thereafter had been good he would never have been required to serve any part of the period of remission. When he went on parole, one of the statutory conditions then applicable exposed him to loss of the remission upon commission of serious crime and, unfortunately, he committed a serious crime.
It is, I think, not unimportant to recall that when mandatory supervision was introduced as part of the 1968-69 amendments, Parliament drew a clear line between persons sentenced to imprisonment in or transferred to any class of penitentiary on or after the first day of August, 1970, who were made subject to mandatory supervision, and those who were sentenced prior to that date, who were exempted (see Criminal Law Amendment Act, 1968‑69 (Can.), c. 38, s. 101(2) and proclamation thereunder, SOR/70-339). The amendment respecting loss of remission on forfeiture of parole was not accompanied by any such distinction and took effect with respect to all persons paroled on or after August 26, 1969 (R.S.C. 1970 (1st Supp.), c. 31, s. 2(2)).
I would dismiss the appeal.
Appeal dismissed.
Solicitors for the appellant: Rauenbusch, Torkin & Manes, Toronto.
Solicitor for the respondent: D.S. Thorson, Ottawa.