Supreme Court of Canada
Jackson v. R., [1979] 1 S.C.R. 712
Date: 1978-12-21
Denis Wayne Jackson (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
1978: October 17; 1978: December 21.
Present: Spence, Pigeon, Dickson, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Statutes—Interpretation—Ambiguity—Construction of amendment—Loss of remission on suspension of day parole—Parole Act, R.S.C. 1970, c. P-2, (as amended by 1977 (Can.), c. 3, Part III), ss. 10, 20.
Appellant was being held in close custody on a Warrant of Recommitment on Revocation of Parole (Day) dated December 28, 1977. He had been convicted on November 3, 1974 on a charge of theft and sentenced to five years’ imprisonment. On being received into the penitentiary he had been credited with statutory remission amounting to one‑ourth of his sentence subject to good conduct under s. 22(1) of the Penitentiary Act, R.S.C. 1970, c. P-6, which also provided for “earned remission” of three days’ remission in respect of each calendar month, during which an inmate “has applied himself industriously.” On October 1977, appellant was released on day parole but on December 15, 1977, he was arrested pursuant to the suspension of this day parole. His term of imprisonment was then calculated on the basis that he lost credit for all of the statutory remission standing to his credit at the time of his release on day parole because of the purported revocation. Appellant’s application for habeas corpus with certiorari in aid was dismissed for the reasons given in R. v. Agg. The Court of Appeal affirmed the judgment below for the same reasons.
Held: The appeal should be dismissed.
Prior to the 1977 amendments to the Parole Act, the Hales case rejected the exercise of the power of revocation in respect of day parole for two reasons: s. 10(2) provided only for the termination of day parole, and loss of statutory remission upon revocation would lead to a day parolee serving his time twice over. In the later case of Carlson, the Ontario Court of Appeal accepted that the power of revocation was available in relation to day
[Page 713
parole, but found ambiguity in the former revocation provisions which were specific as to the necessity of “recommitment” of the parolee, whereas a day parolee was deemed to be still committed during his day parole. That ambiguity was resolved in favour of the inmate. In both cases, the courts concluded that the term “parole” means both general parole and day parole, unless the contrary appears expressly or impliedly.
The 1977 amendments, which came into force twelve days before appellant’s release on day parole, involved inter alia (first) the abolition of forfeiture of parole and the removal of any reference to it in the Parole Act, (second) the reorganization of the section dealing with revocation, which was rendered more flexible and more generous by allowing greater credits on revocation as well as by giving the Board a discretion to re-credit statutory and earned remission, and (third) the redefinition of “parole” to include day parole.
The effect of these amendments is to blunt the argument in Hales’ case, both s. 20(2)(a) and s. 20(3) depriving the “re-serving of time” interpretation of much of its effect. For appellant to succeed he must show that either the “termination” point or the “recommitment” point continues to be the law despite the new s. 20. Having regard to the abolition of forfeiture, day parole can only be ended by revocation under s. 10(1)(e) and s. 20 or by termination under s. 10(2). To exclude the application of revocation to day parole after the 1977 amendments would be to accept a wholly improbable view of Parliament’s intention, allowing a day parolee to commit an indictable offence while on parole without any of the consequences that would result from revocation, were the same offence to be committed by a general parolee.
Further, having regard to the abolition of forfeiture and its replacement by simple revocation, the reference to “recommitment” in s. 20(1), taken in conjunction with the new s. 20(2), does not constitute such uncer-
[Page 714]
tainty that real ambiguities are found, or doubts of substance arise, in the construction and application of the statute.
R. v. Hales (1974), 18 C.C.C. (2d) 240 (Man. C.A.); Ex parte Carlson (1975), 26 C.C.C. (2d) 65; Zong v. Commissioner of Penitentiaries, [1976] 1 F.C. 657 (F.C.A.); Ex parte Davidson (1974), 22 C.C.C. (2d) 122 (B.C.C.A.); Ex parte Kerr (1975), 24 C.C.C. (2d) 395 (Ont. C.A.); Marcotte v. Deputy Attorney General for Canada, [1976] 1 S.C.R. 108 referred to.
APPEAL from a judgment of the Court of Appeal for Ontario dismissing an appeal from a judgment of Grange J. dismissing an application for a writ of habeas corpus ad subjiciendum with certiorari in aid. Appeal dismissed.
Ronald R. Price and Allan S. Manson, for the appellant.
Peter T. Mclnenly and Brian D. Segal, for the respondent.
The judgment of the Court was delivered by
DICKSON J.—The question in this appeal is whether certain amendments to the Parole Act, R.S.C. 1970, c. P-2, effective October 5, 1977, altered the law as determined in two earlier decisions in such a manner as to render an inmate on day parole subject to the provisions of the Parole Act relating to the revocation of parole, with consequent loss of remission standing to his credit at the time parole was granted to him.
The appellant is being held in close custody in Frontenac Institution, a penitentiary, on the strength of a document entitled “Warrant of Recommitment on Revocation of Parole (Day)”, dated December 28, 1977. He had been convicted on November 13, 1974 on a charge of theft and sentenced to five years’ imprisonment. As required by s. 22(1) of the Penitentiary Act, R.S.C. 1970, c. P-6, he was credited upon being received into the penitentiary with statutory remission amounting to one-fourth of the period for which he had been sentenced, as time off, subject to good conduct. It was further provided, under the Penitentiary Act, that “[e]very inmate may be credited with three
[Page 715]
days’ remission of his sentence in respect of each calendar month during which he has applied himself industriously...,” known as “earned remission.”
On October 27, 1977, the appellant was released on day parole which was to continue until February 26, 1978. On December 15, 1977 he was arrested, pursuant to the suspension of his day parole. On December 28, 1977 the Parole Board purported to revoke the day parole and he was committed to penitentiary. The term of imprisonment he is now serving is calculated on the basis that he lost credit for all of the statutory remission standing to his credit at the time he was released on day parole, in consequence of the purported revocation of his parole. The appellant claims that he is entitled to be credited with all statutory and earned remission that stood to his credit at the time of his release on parole. If correct in this submission, he has the right to be released from custody.
The warrant of recommitment under which the appellant is held states that he was released on parole under the provisions of s. 10(1)(a) of the Parole Act. That section was unaffected by the 1977 amendments. It empowers the Parole Board to grant parole to an inmate. Section 10(1)(e) empowers the Board “in its discretion, [to] revoke the parole of any paroled inmate.” Prior to the 1977 amendments, “parole” was defined as meaning “authority granted under this Act to an inmate to be at large during his term of imprisonment,” but the definition was changed in October, 1977 to read:
...“parole” means authority granted under this Act to an inmate to be at large during his term of imprisonment and includes day parole.”
For present purposes the words to be noted are “and includes day parole.” The definition of “day parole” was not altered by the amendments introduced in 1977, and reads:
[Page 716]
...“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.
Most of the appellant’s argument is built upon two cases decided prior to the amendments introduced by the Criminal Law Amendment Act, 1977, 1976-77 (Can.), c. 53—R. v. Hales[1] and Ex parte Carlson[2]. A further case employed by the appellant, largely for the interpretation of these two cases, is the careful review of the authorities found in the decision of Mr. Justice Le Dain in Zong v. Commissioner of Penitentiaries[3]. In essence, the appellant argues that the law established in Hales and Carlson was not changed by the 1977 amendments to the Parole Act and the Penitentiaries Act.
Hales was granted day parole on January 2, 1973, but failed to report as he was required to do under the conditions of his parole and the next day, January 3, 1973, the parole was suspended. Hales was apprehended and placed in custody. His parole was revoked. In calculating the date for Hales’ release the penitentiary authorities gave him credit for statutory remission based upon the remainder of the term to be served, i.e. after the date of revocation of his parole. He claimed for the statutory remission of one-quarter of his original three-year term. Mr. Justice Matas, delivering the judgment of the Manitoba Court of Appeal, first referred to the definitions of “parole,” which he termed “general parole,” and to the definition of “day parole.” He accepted the Crown submission that the term “parole” in the Act meant both general parole and day parole unless the contrary appeared either expressly or implicitly. He quoted s. 10(1)(e), to which I have already referred, and s. 10(2) which at that time, and at the present time, reads: “The Board, or any person designated by the Board, may, in its or his discretion, terminate the day parole of any paroled inmate.” Refer-
[Page 717]
ence was made to ss. 13(1) and (2), which at the time read:
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...
Mr. Justice Matas observed that on revocation, a general parolee was required to serve, in custody, the time he spent out of prison on general parole and that he was not entitled to credit of his original statutory remission. Crown counsel argued that the power of revocation under s. 10(1)(e) was not expressly limited to general parole, nor was such a restriction to be implied; that the wording of s. 20(1) was as appropriate to effect the revocation of day parole as general parole; that s. 13 must be governed by s. 20, and viewed in their entirety the Parole Act and the Penitentiary Act have a like effect with respect to revocation of either general parole or day parole. Mr. Justice Matas was not prepared to accept that argument. He was of opinion that s. 10(2) provided a specific means of bringing day parole to an end, by termination, and there was not express or implied authority in the Act for depriving the day parolee of statutory remission credited to him at the start of his original sentence.
[Page 718]
The Crown submission was also rejected for a second reason, namely, that if there were a revocation of the parole of a day parolee he would be deprived not only of the period of original statutory remission, but also the time spent at large, contrary to s. 13 of the Act, supra. Mr. Justice Matas was concerned that a day parolee would have to do double service—first returning to prison within the terms of his day parole and then, if parole were revoked, serving once more, by reason of s. 20, the time during which he had been on day parole. In the result, the Court concluded that Hales was entitled to be credited with the statutory remission under the original sentencing.
The judgment of the Ontario Court of Appeal in Ex parte Carlson, supra, was delivered by Mr. Justice MacKinnon. The question, as in Hales’ case, related to the Parole Board’s power of revocation of day parole and the loss of statutory remission. Mr. Justice MacKinnon began by agreeing with the Manitoba Court of Appeal that “where the word ‘parole’ appeared in the Act, unless the contrary appeared either expressly or impliedly, it meant both ‘general’ and ‘day’ parole.” Thereafter, the reasoning took a different course. At the outset, difficulty was noted in a construction which would have different consequences flowing from identical acts or actions, depending upon whether committed by a general parolee or a day parolee, that is to say, (p. 70):
...An act or breach of parole which could lead the Parole Board to revoke a general parole, with the consequent loss of statutory remission, could only lead to the termination of day parole, as the sole consequence of such act or breach.
The main tenor of Mr. Justice MacKinnon’s reasoning may, I think, be summarized in the following propositions:
[Page 719]
(1) The word “parole” in s. 10(1)(a) must cover “day” as well as “general” parole, as s. 10(1) (a) is the only section which gives the power to grant day parole.
(2) The power of the Board to revoke “the parole of any paroled inmate” under s. 10(1)(e) on its face would appear to cover “day” parole as well as general parole.
(3) Logically, s. 10(2), which permits the Board to “terminate” day parole, is just an added power given to the Board to allow the ending of day parole for a minor infraction, without the serious consequences that would result to the inmate if his parole were revoked.
(4) The terminating power can also be used to explain the deeming clause of s. 13(1); as the 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, on termination there is no need to go through the procedure of warrants of apprehension and recommitment.
(5) The words “while the parole remains unrevoked and unforfeited” in s. 13(1) apply to an inmate on day parole.
(6) Section 16, dealing with suspension, apprehension, and remand until the suspension is cancelled, or the parole revoked or forfeited, once again refers to “any parole.”
(7) Section 18(1) contains further reference to “any” parole being “revoked or forfeited.”
That then is the line of reasoning followed on what one might term the first arm of the Carlson case. Although not expressly stated, I take it from what Mr. Justice MacKinnon said, that the Ontario Court of Appeal rejected the view which found favour in the Manitoba Court of Appeal in Hales, namely, that s. 10(2), authorizing the Board to “terminate” day parole, is overriding and the only power by which day parole may be brought to an end.
Proceeding then to the second arm of the Carlson decision. This turned upon two possible constructions of s. 20(1). The Court observed that the
[Page 720]
section is specific as to the necessity of “recommitment,” yet this would seem to be inapplicable to day parolees who are deemed by s. 13(1) to be still “committed” to their place of imprisonment. As an alternative construction, the Court considered that s. 20(1) could be understood as referring to the “de facto” commitment of inmates once their parole, whether “general” or “day”, has been revoked. As Parliament had not made its intention clear, the inmate was entitled to the benefit of the ambiguity.
Thus, assessing the two cases, Hales and Carlson, we find s. 10(2) and the word “terminate” in that section, being given effect in Hales’ case, but not in Carlson’s case. The aspect of s. 20 which gave concern in Hales was the possibility of the inmate on day parole being denied credit for time at large, whereas the word “recommitted” won the day in Carlson. In each of the cases the inmate succeeded, but the reasoning was widely different.
Mr. Justice Le Dain summarized the result of the cases in Zong v. The Commissioner of Penitentiaries, supra, at p. 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.
Mr. Justice Le Dain then stated the first proposition in Hales in these words:
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 referred to, but rejected, the interpretation placed upon s. 13(1) of the Act in Hales, stating, p. 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
[Page 721]
is on parole, but upon revocation or forfeiture he loses the benefit of this provision 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 imprisonment that remained unexpired at the time his parole was granted.
Mr. Justice Le Dain referred to the main ground relied upon by Mr. Justice MacKinnon in Carlson, p. 664:
...He reasoned that since the deeming provision of section 13 appeared to indicate that recommitment was not necesssary upon termination of day parole, the requirement in section 20 that the inmate be “recommitted” upon revocation of his parole resulted in an ambiguity as to whether section 20 was intended to apply to day parole, and the benefit of that ambiguity should be given to the inmate.
Zong’s case was one of forfeiture of parole and the question raised was whether on forfeiture of day parole the appellant lost all credit for time served, including statutory and earned remission, from the date of such release until his parole was terminated. In the course of reaching an affirmative answer to this question, Mr. Justice Le Dain recognized that such a result was undoubtedly a serious one because it meant that if s. 21 were to apply to day parole, in some cases the effects of forfeiture of parole would fall with greater severity upon the day parolee than upon the general parolee, thereby aggravating the greater severity that otherwise existed, to which Matas J.A. had alluded in Hales. Mr. Justice Le Dain characterized that aspect in these words, p. 666:
...during the period in which he is on day parole (and for which he loses all credit upon forfeiture of parole) the day parolee is likely to spend a considerable amount of time in prison. As the term “day parole” implies and as the statutory definition of it indicates the periods during which the inmate is at large are more limited than in the case of general parole, and, in fact, they
[Page 722]
alternate at short intervals with periods of imprisonment.
Despite his doubts on this point, exacerbated by the omission in s. 2l(1)(d) of credit for time spent in custody following termination of day parole, Mr. Justice Le Dain gave more weight to the serious conduct which caused forfeiture—the conviction of an indictable offence, punishable by imprisonment for a term of two years or more—and found (p. 667) no “reasonable uncertainty as to legislative intention of which the benefit must be given to the appellant.”
Here lies the underlying rationale in both Hales and Carlson, namely, the severity of the consequences to the day parolee of revocation as opposed to termination. Day parole is a limited form of parole, unlike general parole, and the loss of all statutory and earned remission upon revocation of day parole seems an inordinately heavy penalty for what may be a relatively minor breach of day parole.
It will be convenient now to turn to the 1977 amendments, which came into force on October 15, 1977, twelve days prior to the date upon which the appellant was released on day parole. The amendments can be described as follows:
(1) Forfeiture was abolished by the repeal of the old s. 17 and s. 21, as well as the removal of any reference in the Parole Act to forfeiture.
(2) Section 20 (quoted later) dealing with revocation was reorganized and rendered more flexible—and more generous—by allowing greater credits upon revocation in s. 20(2) as well as by giving the Board a discretion to recredit statutory and earned remission in s. 20(3).
(3) The role of the magistrate in recommitment in s.s. 16 and 18 was removed and his powers were given to the Board of its designate.
(4) “Parole” in s. 2 was defined to include day parole.
[Page 723]
When the present case came before Mr. Justice Grange, of the Supreme Court of Ontario, he merely noted on the docket: “July 12/78—I am told by Counsel for applicant that identical issue was decided in Court of Appeal in R. v. Agg June 29, 1978 adversely to application and this application should stand dismissed and it is.” When the matter reached the Court of Appeal the docket was endorsed: “For the reasons given in Regina v. Agg the appeal is dismissed.”
The reasons for judgment in Regina v. Agg (unreported to date) were delivered orally by Mr. Justice Houlden. The new s. 20 was cited, as well as the former s. 20. The decision of the Court in Ex Parte Carlson was mentioned and the issue was defined as being whether the new s. 20 applied to a day parolee whose parole has been revoked. After reciting the facts, the change in the definition of “parole” to include day parole was explained and then the judgment concludes with this paragraph:
The Parole Act provides two methods of putting an end to day parole: (1) it can be revoked under s. 10(1)(e) of the Parole Act (see Ex parte Carlson, supra, at p. 70); or, (2) it can be terminated under s. 10(2). If day parole is terminated, then s. 20 does not apply, and the serious consequences which flow from that section have no application. If however, day parole is revoked, then in our opinion it is clear from the amendments to ss. 2 and 20 that a day parolee is to be subject to the provisions of s. 20. The appellant’s day parole having been revoked, he is subject to s. 20. The appeal must therefore be dismissed.
Whatever one may think of the impact of the 1977 amendments, one thing is clear. The new definition of “parole” in s. 2, relied upon in Regina v. Agg, can be taken as merely declaratory of existing jurisprudence. The real basis of the decision in the Agg case appears to lie in implicit acceptance of that part of Carlson’s case in which the “termination” point raised in Hales was overridden. But no mention is made in Agg of the main point of decision in Carlson, i.e. “recommitment,” nor is there any inquiry into the changes in s. 20 which,
[Page 724]
in my opinion, are crucial in this appeal and must now be examined.
The old s. 20(1) 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, including earned remission, then standing to his credit, less any time spent in custody as a result of a suspension of his parole.
Two important components are involved in the section, as Mr. Justice MacKinnon pointed out, a revocation and a recommitment. Both were essential to the loss of statutory and earned remission standing to the inmate’s credit at the time parole was granted. The new s. 20 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 parole inmate shall, notwithstanding that he was sentenced 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, including 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.
[Page 725]
(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.
Subsection (1) refers to the place of recommitment after revocation. Subsection (2) does not mention recommitment, but does refer to “when any parole is revoked.” The calculation of the term of imprisonment has been changed. While statutory and earned remission are still lost, there are a number of alleviating factors introduced, other than s. 20(2)(b), which merely carries forward the credit for time in custody during suspension. The new s. 20(2)(c) gives credit for earned remission while parole is suspended and the inmate is in custody. Section 20(2)(d) preserves any earned remission credited before the coming into force of the subsection, while s. 20(2)(a) credits “any time spent on parole” after such coming into force. Finally, subs. (2) is subject to subs. (3) which permits the Board to “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.”
There can be no doubt that the effect of s. 20(2)(a) and the potential effect of s. 20(3) is to blunt considerably the second point taken in Hales’ case, i.e. the possibility of having to re‑serve the time spent on day parole. Counsel for the appellant adopts two lines of argument in an attempt to reduce the impact of the words “any parole” in the opening part of s. 20(2). First, he suggests that these words must be read in conjunction with the phrase following, in this manner: “...when any parole is revoked, notwithstanding that he [the parole inmate] was sentenced or granted parole prior to the coming into force of this subsection.” “Any parole” it is contended, is limited to general parole and the “notwithstanding” clause was intended “to avoid any possible construction that would create two classes of inmates, with differing bases for the interpretation of their sentences arising out of differences in their parole status.” That object, however, appears to be
[Page 726]
achieved by the wording of the “notwithstanding” clause alone, without any need to refer to “any parole.”
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, expecially 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 “notwithstanding” 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 Davidsonx[4] and Ex parte Kerr[5]. 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 argument 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.
[Page 727]
In the end, I am satisfied that the addition of s. 20(2)(a) deprives the “re-serving of time” argument of any effect. 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. 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.
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 condition 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 reference to “recommitment” in s. 20(1), taken in conjunction with the new s. 20(2), can constitute such uncertainty that
[Page 728]
“real ambiguities are found, or doubts of substance arise, in the construction and application of [the] statute;” Marcotte v. Deputy Attorney General for Canada[6] 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.
I would dismiss the appeal.
Appeal dismissed.
Solicitor for the appellant: Ronald R. Price, Kingston.
Solicitor for the respondent: R. Tassé, Ottawa.