T-1282-75
André Ouellette (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Walsh J.—Montreal, November
25; Ottawa, December 24, 1975.
Imprisonment—Plaintiff serving 5-year term, paroled—
Sentenced to one day for receiving—Subsequently sentenced to
10 years for armed robbery—Warrant of committal signed
requiring him to serve the rest of his original sentence from the
date on which he was sentenced to 10 years—Whether parole
can be reinstated after forfeiture—Whether committal ille-
gal—Calculation of time remaining and of statutory remis-
sion—Parole Act, S.C. 1958, c. 38, ss. 8, 14, 17, 21—Federal
Court Rules 337(2)(b),(3).
Plaintiff, having served 569 days and accumulated 119 days
earned remission of a five-year term was paroled, December 15,
1961. He was sentenced on March 19, 1964 to one day for
receiving, which automatically caused forfeiture of his parole.
He was, on July 17, 1964, in prison awaiting sentencing on a
charge of armed robbery; he was sentenced on November 12,
1964, to ten years. A warrant of committal, which plaintiff
alleges to be void under section 14 of the Parole Act was signed
on January 20, 1965. It required him to serve the rest of his
original sentence (1137 days) from November 12, 1964. The
warrant was not signed by a magistrate, but by a prison
warden. Plaintiff alleges that parole cannot be reinstated after
forfeiture; that, because of the incapacity of the officer signing
the warrant, the committal was illegal, and that with respect to
his right to 284 days statutory remission this calculation of the
time remaining to be served and his statutory remission should
have started from March 19, 1964, not from his incarceration
on July 17, 1964. Defendant claims that the calculation should
have started from November 12, 1964, since during the inter
val, he was not in penitentiary as a result of previous sentences,
but must be deemed to have been on parole while awaiting trial,
though still in prison.
Held, applying Rule 337(2)(b), plaintiff's counsel should
prepare a draft judgment and move accordingly; if the form
cannot be agreed on, Rule 337(3) will be applied. The warrant,
which was irregularly issued, by virtue of section 14 of the Act
was unnecessary, and the calculation therein is a nullity. The
bringing of the accused before a magistrate for the issue of a
warrant is only necessary when he is on parole, and not already
incarcerated. Neither the Parole Board nor the Court can
change the forfeiture which automatically occurs under section
17. The fact that a sentence of only one day was imposed
cannot affect the length of time required to be served by virtue
of section 17(1). Plaintiff's conviction of March 19 automati
cally required him to serve the balance of the original sentence
plus the one day. While there is doubt as to the Board's
authority to reinstate the parole which had been forfeited, it
was done, and plaintiff was again free, until commission of the
further offence, which again resulted in automatic forfeiture.
When convicted March 19, 1964, plaintiff was required to serve
the balance of the original sentence less statutory remission,
plus one day, but, as a result of the reinstatement, he could
have served the time at liberty. However, as a result of the
further offence, he lost any credit to which he would have been
entitled while he was again at liberty. Section 17(1), at the
time, referred to forfeiture by a conviction. It appears that
plaintiff was still on parole when he committed the new offence
and cannot be credited with time spent in custody between July
17 and November 12, 1964.
Re Pearce [1966] 3 C.C.C. 326; Ex parte McCaud [1965]
1 C.C.C. 168; Attorney General of Canada v. Pomerleau
(Que. C.A., unreported, No. 10-000049-72) and Ex parte
Muzylo [1971] 1 O.R. 754, discussed. Karchesky v. The
Queen [1967] S.C.R. 547 and In re Edmonds [1972] F.C.
1390, applied.
ACTION.
COUNSEL:
N. Daignault for plaintiff.
J.-P. Belhumeur for defendant.
SOLICITORS:
N. Daignault, Montreal, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
WALSH J.: Although there was no agreed state
ment of facts in this case, the admissions made in
the course of the pleadings themselves as amended
at the opening of the trial established agreement
with respect to most of the facts. The plaintiff
alleges that he is at present detained in the Laval
Institution, that on or about May 25, 1960, Judge
Almond of the Court of Sessions of the Peace in
Montreal sentenced him to five years in prison
from that day, equivalent to 1826 days in prison.
On December 15, 1961, he was released on parole
after having served 569 days and accumulated 119
days of earned remission so that at that date there
remained 1137 days for him to serve. On March
19, 1964, he was sentenced to one day in prison by
Judge O'Meara of the Court of Sessions of the
Peace in Montreal following a plea of guilty to a
charge of receiving. This sentence had the effect of
causing automatic forfeiture of his parole. On July
17, 1964, he was in prison awaiting his sentence on
a charge of armed robbery and on November 12,
1964, he was sentenced to ten years in prison from
that day by Judge A. Cloutier of the Court of
Sessions of the Peace in Montreal. On January 20,
1965, one J. Alfred Fournier, Justice of the Peace,
signed a warrant of committal which plaintiff
alleges was void by virtue of section 14 of the
Parole Act' which would require his imprisonment
to serve the rest of his sentence of 1137 days from
November 12, 1964 2 . However, the said J. Alfred
Fournier was not a magistrate but merely an
employee of the St. Vincent de Paul penitentiary
as a warden therein. The plaintiff further alleges
that he was never brought before a magistrate in
accordance with the law and that no magistrate
ever issued a warrant of committal, contrary to
section 14(2) of the Parole Act. All these allega
tions were admitted in the original defence but in
an amended defence the allegations respecting the
qualifications of Fournier to sign the warrant of
committal were denied. As a result of a motion to
strike part of the amended defence a further
amendment was made, the defendant now admit
ting that Alfred Fournier, Justice of the Peace,
was authorized to receive affidavits only.
An amended reply was filed in due course by the
plaintiff and at the opening of the hearing the
defendant agreed to admit the allegations in para
graphs 9, 10 and 11 thereof which were allegations
to the effect that, after the start of the present
proceedings, one Lily Tronche, district representa
tive of the National Parole Service, on or about
May 21, 1975, arranged to ask Judge Jean-Paul
Grégoire of the Municipal Court of Laval to issue
a new warrant of committal on May 30, 1975, to
replace the warrant contested in the present action
but that, as he could not free himself from his
obligations on the date assigned, he was replaced
by Judge Jean-Baptiste Crépeau of the same court,
S.C. 1958, c. 38.
2 Actually the warrant states 1256 days plus a term of ten
years.
and that the latter on representations made by the
plaintiff refused to sign the warrant.
At the opening of the hearing the conclusions of
the declaration were amended so as to add after
the words July 17, 1964, in paragraph (a) thereof
the words "and that he then had the right to
statutory remission of 284 days and to strike para
graph (b) which had concluded that the balance of
the sentence had been entirely served by Septem-
ber 13, 1966." Defendant's counsel also, to avoid
the necessity of calling plaintiff as a witness,
agreed to accept the contents of an affidavit taken
by him on October 8, 1975, as being the evidence
which he would give if called upon to testify and
waived his right to cross-examine on same.
Plaintiff's argument is threefold. First, that
parole cannot be reinstated as was done in this
case after the forfeiture of same. Second, that
because of the incapacity of Fournier to sign the
warrant of committal the committal of plaintiff on
January 20, 1965, was illegal. Third, that with
respect to plaintiffs right to 284 days statutory
remission this calculation of the time remaining to
be served and his statutory remission, should have
started from March 19, 1964, and not from his
incarceration on July 17, 1964. Defendant claims
that the calculation should have started from
November 12, 1964, since he was not during the
intervening period in the penitentiary as a result of
his previous sentences but must be deemed to have
been on parole while awaiting trial even though he
was in fact still in prison.
The witness Fournier testified that his commis
sion as Justice of the Peace authorized him to
administer oaths only and the copy of it which he
produced confirms this. He stated that he often
also signed forms dealing with release without
reading the contents. He did not know the plaintiff
Ouellette but was asked to sign the committal
warrant by someone in the warden's office and
understood that this was the procedure which had
always been followed. Also produced as an exhibit
was a release on parole form which, although
dated November 28, 1961, provided for the release
of plaintiff on parole on December 15, 1961, or
within 14 days thereafter and until January 25,
1965. One of the conditions on the back was that
he should report at least once a month to the
police, and from the number of police stamps
appearing on the form it would appear that he
complied with this condition.
Another witness, Lily Tronche, parole officer,
filed a number of other documents including a
copy of the plaintiff's original sentence to five
years on May 25, 1960, a copy of his subsequent
sentence to one day on March 19, 1964, a copy of
his sentence to ten years on November 12, 1964, a
form of submission by a parole analyst to the
National Parole Board dated April 30, 1964,
which concludes "in the circumstances, having
regard to the foregoing, I would recommend that
the certificate of parole granted to Ouellette on
November 28, 1961, and which became automati
cally forfeited following his conviction be now
reinstated." This was following his conviction of
one day for receiving. She also produced a letter
dated May 7, 1964, on the letterhead of the Na
tional Parole Board addressed by the secretary of
same to the regional representative of the National
Parole Service directing that a firm warning be
given to Ouellette that this was his last chance.
Additional copies of the letter were enclosed "to be
passed to the supervisor and the parolee". She also
produced a copy of a letter dated May 11, 1969,
from the secretary of the National Parole Board to
the commissioner of the Royal Canadian Mounted
Police advising them of the decision to reinstate
the plaintiffs parole despite his conviction on the
charge of receiving, advising that the Board "will
not therefore issue a warrant of apprehension".
There is also a copy of a letter dated May 19,
1964, from the regional representative of the Na
tional Parole Service to a Mr. Emmanuel Gré-
goire, Director of the "Société d'Orientation et de
Réhabilitation Sociale", enclosing a copy of the
Board's letter respecting plaintiff in which it is
stated that they have also sent a copy to Ouellette.
This obviously refers to the letter of the National
Parole Board of May 7, 1964. It would certainly
tend to corroborate the fact that Ouellette was
advised of his reinstatement, although in his
affidavit he states that he never received it,
although this is, of course, also possible. On
December 24, 1964, a letter was written by the
RCMP, Identification Branch, to the warden of
St. Vincent de Paul penitentiary advising of plain-
tiff's conviction to ten years on October 30, 1964,
for armed robbery, as a result of which his parole
was automatically forfeited and an arrest warrant
was issued on December 16, 1964. The letter goes
on to say that it is enclosed together with a
partially completed warrant of committal in dupli
cate indicating that he will be required to serve
1256 days of his previous sentence plus a term of
ten years to be completed from November 12,
1964. The letter requests that the warrant be
executed in accordance with section 17 of the
Parole Act which provides for forfeiture of parole
when a paroled inmate is convicted of an indict
able offence punishable by imprisonment for a
term of two years or more. The arrest warrant
issued by the National Parole Board on December
16, 1964, to which this letter refers, was also filed.
Finally, there is the report to the Parole Board
dated December 9, 1964, by the parole analyst
referring to the reinstatement of parole on May 6,
1964, and the subsequent sentence to ten years on
November 12, 1964, with the recommendation
that in view of the automatic forfeiture of his
parole an arrest warrant be issued. It is presum
ably as a result of this that the arrest warrant was
issued.
The witness also produced a copy of the decision
of the National Parole Board reinstating the plain
tiff's parole on May 6, 1964, which I permitted to
be received in evidence despite plaintiff's objec
tion. This decision contains comments from two of
the members of the Board expressing themselves to
be shocked at the decision to reinstate his parole
when the object he was charged with receiving was
a loaded revolver. Apparently the reinstatement
was approved as a result of the Board being faced
with a fait accompli, since the report of the parole
analyst dated April 30, 1964, referred to plaintiff's
good behaviour after his release from the one-day
sentence on March 19, 1964, so he had evidently
been released at that time, despite the balance of
time remaining unserved of his earlier five-year
sentence, and automatic forfeiture of parole. Miss
Tronche testified that the words "parole reinstat
ed" in the decision of the Parole Board of May 6,
1964, merely indicates that the parole had been
revoked or forfeited before and that this can
happen without a suspension having been made.
She conceded that normally it is not possible to
grant a parole unless a prisoner applies for it, and
that it is very exceptional therefore that following
the automatic forfeiture as a result of the one-day
sentence it was reinstated.
We now have to consider the consequences of
what took place, bearing in mind that if errors
took place in the carrying out of the law, they
must be interpreted in favour of the plaintiff, but
that on the other hand administrative errors
cannot change the effect of express provisions of
the law. In view of the evidence made at the
hearing, defendant no longer can seriously contest
that the committal warrant signed by J. Alfred
Fournier on January 20, 1965, is irregular and
invalid as he had no authority to sign same. I also
find that the attempt to remedy this at a very late
date by obtaining a new warrant of committal
from Judge Jean-Paul Grégoire, and when he was
not available Judge Jean-Baptiste Crépeau, was
properly dealt with by the latter when he refused
to sign this warrant, the present proceedings in this
Court in which the defect in the original committal
was raised having already been instituted on April
28, 1975. However, I do not find that any such
warrant of committal was necessary in order to
properly imprison the plaintiff who had been in
custody awaiting trial on the armed robbery
charge since July 17, 1964, and was convicted on
November 12, 1964, and sentenced to ten years
from that date. The warrant which was irregularly
issued on January 20, 1965, by virtue of section 14
of the Act was unnecessary, and because of its
irregularity the calculation therein that the plain
tiff was required to serve 1256 days plus ten years
from November 12, 1964, is a nullity. Section
14(1) of the Act referring to the issue by the
Parole Board of an arrest warrant when a parole is
revoked or forfeited states the Commission "may"
authorize his arrest. Subsection (2) refers to the
arrest by virtue of a warrant issued under this
section and the bringing of the accused before a
magistrate for the issue of a warrant of committal
for his new imprisonment. Obviously this proce
dure is only necessary when he is at liberty on
parole, and not when he is already incarcerated.
See in this connection Re Pearce'. See also Ex
parte McCaud 4 which dealt with revocation rather
than forfeiture and which was confirmed in the
Supreme Court. Here we are dealing with section
17 of the Act which is even stronger as it deals
with forfeiture which takes place automatically
and neither the Parole Board nor the court has any
discretion to change this 5 . The fact that a sentence
of only one day was imposed cannot affect the
length of time required to be served by virtue of
section 17(1) of the Act. Plaintiff's conviction
therefore on March 19, 1964, had the result of
automatically requiring him to serve the balance
of the sentence\imposed on him on May 25, 1960,
which remained unexpired when parole was grant
ed to him on December 15, 1961, plus the one day
to which he was sentenced on March 19, 1964.
3 [1966] 3 C.C.C. 326 at page 330.
4 [1965] 1 C.C.C. 168 at page 169.
Section 17(1) of the Act in effect at the time read as
follows:
17. (1) When any parole is forfeited by conviction of an
indictable offence the paroled inmate shall undergo a term of
imprisonment equal to the portion of the term to which he
was originally sentenced that remained unexpired at the time
his parole was granted plus the term, if any to which he is
sentenced upon conviction for the offence.
The same reasoning respecting the new warrant
was adopted unanimously in the Quebec Court of
Appeal Case No. 10-000049-72 Attorney General
of Canada v. Pomerleau. On pages 4 and 5 of the
judgment it is pointed out that an arrest will be
necessary in the case of revocation or suspension of
parole when the accused is at liberty but when he
is already imprisoned as the result of automatic
forfeiture of the parole this formality is super
fluous. Reference was made in it to the Supreme
Court case Karchesky v. The Queen 6 .
See also Ex parte Muzylo 7 in which the head
note reads in part:
The warden does have sufficient authority however to hold the
applicant where there are other warrants of committal issued
under the hand of the magistrate convicting the applicant for
the new offence even though such warrants do not state that the
sentences are to be served consecutively to the unexpired
portion of the original sentence.
Apparently some misunderstanding resulted
from the fact that plaintiff was in prison for some
four months awaiting trial before he pleaded guilty
on March 19, 1964, and received the one-day
sentence, after having been on a parole at the time
of his arrest for his offence on or about November
23, 1963, with the result that instead of being
returned to the penitentiary to serve the remaining
portion of his original sentence imposed on May
25, 1960, he was released after serving only one
day. The Parole Board was faced with a fait
accompli when it issued its decision "parole rein
stated" on May 6, 1964, despite making critical
comments respecting the recommendation of the
parole officer. Plaintiff contends that he never
reapplied for a parole nor was he brought before
the Board and apparently the reinstatement was
done under the general powers of the Board set out
in section 8 of the Act. While there is considerable
doubt as to whether the Board had the authority to
reinstate the parole which had not merely been
revoked or suspended but which had been
automatically forfeited by operation of law, espe
cially without a new application and following the
regular procedure, this was nevertheless done. The
6 [1967] S.C.R. 547.
7 [1971] 1 O.R. 754.
plaintiff was again at liberty until the commission
of the further offence of armed robbery on July 17,
1964, for which he was sentenced to ten years on
November 12, 1964, which again resulted in auto
matic forfeiture of parole. It is evident that when
plaintiff was convicted and sentenced again on the
armed robbery charge on November 12, 1964, the
time which he was required to serve as the result
of the two previous sentences as a result of the
previous forfeiture of parole had not yet expired
and that he again therefore suffered a further
forfeiture of parole by virtue of section 17(1),
whether his freedom at the time of the commission
of the offence resulted from a new parole or from
the "reinstated parole" as it was called. As I have
already indicated however I do not believe that
this reinstatement of the parole can have the effect
of overriding the express provisions of section
17(1) with the result that a new calculation would
be made as of the date of this reinstatement of the
balance of time to be served as a result of the first
sentence plus the one-day additional sentence and
that this would therefore be all that was forfeited
as a result of the commission of the sentence for
which he was sentenced to ten years on November
12, 1964. Rather, I believe that when he was
convicted on March 19, 1964, he was required to
serve the balance of his original 1960 sentence less
the statutory remission to which he was entitled
plus one additional day, but that, as a result of his
parole having been reinstated, he could have
served this time at liberty had it not been for the
commission of the third offence. As a result of it,
however, he lost any credit to which he would have
been entitled while he was again at liberty and in
fact his counsel stated that no claim is being made
for credit for this period of freedom.
However, plaintiff contends that he should be
considered as commencing to serve the balance of
these original sentences on July 17, 1964, when he
was again imprisoned rather than on November
12, 1964, the date of his sentence. Section 17(1) as
it read at the time refers to parole being forfeited
by a conviction "for an indictable offence", (and of
course it would not have been forfeited in any
event unless he were convicted), subsection (3)
dealing with offences committed by a paroled
inmate after the expiration of his parole (which is
not the case here) committed during the period
when his parole was in effect states the parole shall
be deemed to have been forfeited on the day on
which the offence is committed. This date was
extended to paroled inmates who are convicted of
an indictable offence committed after the grant of
parole and before discharge by the Criminal Law
Amendment Act', but this amendment is not ap
plicable to the present case. Unfortunately, there
fore, it would appear that plaintiff who was still on
parole when the new offence was committed
cannot according to the law as it stood at that time
be credited the time spent in custody between July
17, 1964, the date the offence was committed and
his conviction and sentence on November 12,
1964. The case In re Edmonds 9 to which I was
referred in which then Associate Chief Justice
Camilien Noël allowed credit for a period of 106
days during which an accused was held in custody
before being released on bail and subsequently
tried and convicted of an indictable offence and
then reimprisoned has no application as it dealt
with sections 17 and 21 of the Parole Act 10 as it
stood at that time.
Although I have set out the general principles on
which I believe the calculation of the time to be
served by plaintiff should be made, and the date of
his release determined, the actual calculations
themselves should be made by the penitentiary
authorities. I believe that this is a proper case for
the application of Rule 337(2)(b) and I would,
therefore, suggest that counsel for plaintiff prepare
a draft of an appropriate judgment to implement
8 S.C. 1968-69, c. 38, s. 13(1).
9 [1972] F.C. 1390.
0 R.S.C. 1970, c. P-2 as amended by R.S.C. 1970, (1st
Supp.) c. 31.
these conclusions and move for judgment accord
ingly and, if the authorities cannot agree on the
form of the judgment, the court will then settle the
terms of same and pronounce judgment in accord
ance with the provisions of Rule 337(3). In view of
the complex situation resulting from errors which
were made by the authorities, defendant, although
successful on the principal issues involved, shall
not have any costs. Since in the event that the
calculation should result in plaintiff being due for
release at an early date it would cause undue
hardship to plaintiff to await translation of these
reasons and the eventual order to be issued as a
result thereof they are being issued in the first
instance in one official language only to be trans
lated as soon thereafter as possible to the other
official language pursuant to the provisions of the
Official Languages Act.
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.