In re Norman William Edmonds (Applicant)
Trial Division, Noël A.C.J.—Ottawa, December
19 and 22, 1972.
Imprisonment—Parole—Paroled prisoner charged with
indictable offence and imprisoned pending trial—Subsequent
conviction—Time in custody awaiting trial credited against
parole—Parole Act, R.S. 1970, c. P-2, section 21(1), as
amended by R.S. 1970, c. 31 (1st Supp.).
E was charged with an indictable offence while on parole
from a penitentiary and was held in custody for 106 days
before being released on bail. He was later tried and con
victed of the indictable offence and re-imprisoned for the
remanet of parole (849 days) plus a term for the subsequent
offence.
Held, notwithstanding that his parole was not "forfeited
by conviction" within the meaning of section 21(1) of the
Parole Act, R.S. 1970, c. P-2 as amended by R.S. 1970, c.
31 (1st Supp.), that enactment should not be restrictively
interpreted, and the 106 days spent by E in custody during
his period of parole should be credited against the remanet
of his parole.
APPLICATION.
K. Cartwright for applicant.
E. R. Sojonky for Deputy Attorney General
of Canada.
NOEL A.C.J.—This is an application made on
behalf of Norman William Edmonds for a dec
laration as to the proper statutes to be applied
to the sentences being served by the applicant.
The facts herein are not contested. The appli
cant is at present an inmate in Joyceville Insti
tution, a part of the Canadian Penitentiary
system. Edmonds was released on parole on
April 22, 1968, such parole to expire on Octo-
ber 13, 1970. He was arrested on February 2,
1970, and charged with uttering. He was in
custody from February 3, 1970, until May 19,
1970, a total of 106 days at which time he was
released on bail. On June 26, 1970, he was
convicted of the offence of uttering and sen
tenced on the same day to 15 months consecu
tive to any sentence being served. He also
received an additional 3 month consecutive
term in Oshawa on September 14, 1971. He
was advised that he had been recommitted as of
June 26, 1970, for the period of 849 days
remanet of parole plus 15 months plus 3
months. He also has been advised that he will
be released on March 11, 1973, under mandato
ry supervision for 15 months, representing the
remission time of his original sentence of 1966
of 4 years, together with the remission time
from the subsequent consecutive sentence of 15
months and 3 months.
The applicant submits (1) that the time spent
in custody by him from February 3, 1970, to
May 19, 1970, should be credited against his
parole remanet and (2) that he should not be
placed under mandatory supervision for the
total statutory remission time credited to him
under all of his sentences, but only for the
remission time credited to him on his reincar-
ceration on June 25 of 1970 and under subse
quent sentences.
The only question involved in these proceed
ings is whether the applicant is entitled to have
the 106 days he spent in custody from February
3, 1970 to May 19, 1970 credited against his
parole remanet in the light of section 21 and its
subsection (1) of the Parole Act, R.S. 1970, c.
P-2 as amended by R.S. 1970, c. 31 (1st Supp.).
This section reads as follows:
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 grant
ed, including any period of remission, including earned
remission, then standing to his credit,
(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 indict
able offence is imposed.
The position taken by counsel for the Parole
Board herein is that as the above section allows
credits to be given under section 21(1)(d) only
where the parole is forfeited by suspension or
revocation, no credits can be given when the
parole is forfeited under section 17(1) of the
Parole Act, such as here, when the applicant
was convicted of an indictable offence ' and
where under the above section it is stated that
the parole of the inmate is thereby forfeited and
such forfeiture is thereby deemed to have taken
place on the day on which the offence was
committed.
Section 17(1) reads as follows:
17. (1) Where a person who is, or at any time was, a
paroled inmate is convicted of an indictable offence, pun
ishable 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.
If one considers section 21 literally, the appli
cant does not seem to come under this subsec
tion as his parole has not been suspended or
revoked by the Board and he was not in cus
tody by virtue of such suspension or
revocation.
The question, however, may well be whether
such a restrictive interpretation should be given
to the above section as I must say that I am at a
loss to see why a parolee should be treated any
differently under 'section 17(1) than under sec
tion 21(1)(d) in so far as a credit against his
parole is concerned and counsel for the Depart
ment was not able to show me why there should
be such a discrimination. "Revocation" accord
ing to Jowitt's Dictionary of English Law, p.
1556
... is of three kinds, by act of the party; by operation of
law; and by order of a court of justice (judicial revocation).
and at p. 1557 it is stated that
A revocation in law, or constructive revocation, is pro
duced by a rule of law, irrespectively of the intention of the
parties.
I would be inclined to accept that the word
"revocation" in section 21 comprises also a
revocation by the operation of the law as pro
vided for in section 17(1) of the Act as there
appears to be no good reason why credit should
be refused against an inmate's parole in the case
of a constructive forfeiture of parole and
accepted in the case of a suspension and revo
cation by the Board when, in all three cases, the
parolee is in custody and the parole is forfeited
even if the inmate, under section 17(1) is in
prison because of an arrest and not because of a
suspension or revocation by the Board. The
important thing, in my view, under section
21(1)(d) is not that the custody should follow
the suspension or revocation, but that the cus
tody and the suspension or revocation occur at
the same time. Now, although there could be
some difficulty in applying credit to a case
where a forfeiture operates only from the day
of conviction, there should be none where such
as here, the forfeiture goes back to the day of
the commission of the offence as there is, in
such a case, an identical situation to the one
found in section 21(1)(d) where the custody and
the suspension or revocation occur contempo
raneously. It indeed appears to me that in all
three cases, the parolee is in custody and
whether the loss of the parole by the inmate is
due to a decision of suspension or of revocation
or is brought about automatically by a condem
nation by the court and by operation of the law
should, in my view, make no difference in so
far as the inmate's parole is concerned.
I, therefore, come to the conclusion that the
time spent in custody by the applicant from
February 3, 1970 to May 19, 1970, should be
credited against his parole remanet and that he
should not be placed under mandatory supervi
sion for the total statutory remission time cred
ited to him under all of his sentences, but only
for the remission time credited to him on his
reincarceration on June 25, 1970, and under
subsequent sentences. The applicant shall be
entitled to his costs.
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