Re Moore and The Queen*

41 O.R. (2d) 271 147 D.L.R. (3d) 528 ONTARIO COURT OF APPEAL DUBIN, LACOURCIERE AND GOODMAN JJ.A. 21ST FEBRUARY 1983.
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*An appeal from this judgment to the Supreme Court of Canada was dismissed. See [1983] 1 S.C.R. 658. Criminal Law -- Parole -- Mandatory supervision -- "Gating" -- Inmate due for release on mandatory supervision by reason of expiration of sentence less earned remission -- Parole Board purporting to suspend mandatory supervision and rearrest inmate immediately upon release from penitentiary -- Whether such procedure authorized by statute -- Whether inmate entitled to release on habeas corpus -- Penitentiary Act, R.S.C. 1970, c. P-6, s. 24 -- Parole Act, R.S.C. 1970, c. P-2, ss. 10, 12, 15, 16. The applicant, an inmate of a penitentiary, was due for release on mandatory supervision by reason of the expiration of the sentence that she was serving less a period of earned remission. Immediately upon her release, the Chairman of the National Parole Board signed a warrant of apprehension and suspension of mandatory supervision thereby suspending the mandatory supervision of the inmate and directing that she be returned to custody. It appeared that the inmate did not even leave the institution although she was given the opportunity to walk out of the gate to be immediately returned. An application by the inmate for habeas corpus was granted. On appeal by the Crown, held, the appeal should be dismissed. The procedure of ''gating" as followed in this case by the

National Parole Board is not authorized by statute and the inmate was therefore entitled to her release. By virtue of s. 24 of the Penitentiary Act, R.S.C. 1970, c. P-6, the inmate was entitled to her release on mandatory supervision by reason of the unforfeited earned remission standing to her credit. The entitlement to be released from custody as a result of earned remission is to be found solely in the Penitentiary Act, and until the time of release of an inmate as a result of earned remission the National Parole Board has no authority to intervene. It is only upon release from imprisonment that an inmate becomes subject to mandatory supervision commencing upon release and continuing for the duration of the remission. With respect to such an inmate, the Parole Board may impose such terms and conditions that it considers desirable, and the provisions of the Parole Act, R.S.C. 1970, c. P-2, relating to suspension or revocation of parole are made applicable to an inmate who is subject to mandatory supervision as though he were a paroled inmate and as though the terms and conditions of his mandatory supervision were terms and conditions of parole. In this case, it could not be said that the inmate was ever released in the sense of being at large, even assuming that she had stepped outside the penitentiary gates to be immediately apprehended and returned to custody. There was no mandatory supervision certificate issued as required by s. 12 of the Parole Act nor were there any terms or conditions imposed upon her release. Since the inmate was entitled to be released from imprisonment and was denied that right, she was illegally detained. In any event, the National Parole Board is not entitled, in effect, to forfeit in whole or in part the period of earned remission immediately upon the release of an inmate who, as the result of earned remission, is entitled to be released from imprisonment under mandatory supervision for the period of such earned remission. An inmate who is eligible for release as a result of earned remission pursuant to the provisions of the Penitentiary Act, over which the National Parole Board has no control, is entitled to be released under mandatory supervision subject to such terms and conditions as may be imposed by the National Parole Board. The power to suspend or revoke such mandatory supervision pursuant to s. 16 of the Parole Act can only be invoked by the National Parole Board by reason of the post-release conduct of the inmate while

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at large as if he were a paroled inmate and on parole. Cases referred to Marcotte v. Deputy A.-G. Can. (1974), 19 C.C.C. (2d) 257, 51 D.L.R. (3d) 259, [1976] 1 S.C.R. 108, 3 N.R. 613; Ex parte Beaucage (1976), 31 C.C.C. (2d) 219, 34 C.R.N.S. 127; affd 33 C.C.C. (2d) 129, 73 D.L.R. (3d) 458, [1977] 2 S.C.R. 293, 13 N.R. 400, sub nom. Beaucage v. A.-G. Can. Statutes referred to Parole Act, R.S.C. 1970, 1976-77, c. 53, s. 28); Penitentiary Act, R.S.C. 1976-77, c. 53, s. 41); c. P-2, ss. 10(1)(a), (b), 12, 15 (am. 16 (am. idem, s. 29) 1970, c. P-6, ss. 24 (rep. & sub. 24.1 (enacted idem)

APPEAL by the Crown from a judgment of Eberle J. allowing the inmate's application for habeas corpus.

J. E. Thompson, for the Crown, appellant. D. P. Cole, for accused, respondent.

The judgment of the court was delivered by DUBIN J.A.:-- On December 14, 1982, Marlene Moore, an inmate of the Prison for Women in a penitentiary operated by the Correctional Service of Canada, in the City of Kingston, Ontario, became entitled to be released from that institution to serve the balance of her sentence, which was to expire on March 24, 1983, under mandatory supervision. Release on mandatory supervision is a procedure whereby an inmate of a prison who has not been granted parole is released before the expiration of the sentence imposed at a date set by statute so that the inmate may serve the balance of his sentence at large in society but under supervision and subject

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to return to prison if the former inmate fails to comply with the conditions governing the release. The statutory provision which governs the date of such release is to be found in s. 24 of the Penitentiary Act, R.S.C. 1970, c. P-6, subsequently referred to. It is a date over which the National Parole Board has no control. On December 14, 1982, immediately upon the "release" of Miss Moore, the Chairman of the National Parole Board, purportedly acting pursuant to s. 16 of the Parole Act, 1958 (Can.), c. 38, as amended, now R.S.C. 1970, c. P-2, signed a warrant of apprehension and suspension of mandatory supervision thereby suspending the mandatory supervision of Marlene Moore and directing that she be returned to custody. From the material before us it does not appear that Miss Moore ever left the institution although it was said that she was given the opportunity of walking out of the gate of the prison to be immediately returned. However, the case was argued on the premise that she had in fact stepped outside the prison walls and was immediately taken back into custody, a procedure colloquially called "gating". It is apparent from the material that the decision to suspend the respondent's release on mandatory supervision was taken before the date for her release. The warrant of apprehension and suspension of mandatory supervision was on the basis that there were reasonable and probable grounds to believe that Miss Moore should be apprehended "to prevent a breach of a term or condition of mandatory supervision and for the protection of society". In this case there was no mandatory supervision certificate issued, nor any terms or conditions imposed with respect to her release. The right of the National Parole Board to suspend the mandatory supervision was challenged by a motion for habeas corpus with certiorari in aid, which motion came on for hearing before Mr. Justice Eberle. There was no objection taken to his jurisdiction to entertain the motion. Mr. Justice Eberle concluded that there was no authority for the National Parole Board to suspend her release on mandatory supervision under such circumstances, granted the application for habeas corpus

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and directed that Miss Moore be released upon such terms and conditions of mandatory supervision that the National Parole Board may deem appropriate. It is from that order that the Crown has taken this appeal. The details of the past criminal conduct of the respondent and of her history are fully set forth in the carefully considered reasons of Eberle J. and need not be repeated here. The psychiatric assessment which concluded that "there is, quite obviously from her history, a potential for violence to herself and others and if released under mandatory supervision would present a considerable risk to society" appears to be fully warranted. It may well be that in this case it would be in the best interest not only of society but of the respondent that she serve the balance of her sentence in custody, short as that may be, and if the National Parole Board had the authority to act, this would be a proper case to exercise that authority. But her rights must be determined according to law, and I agree with the judgment under appeal that the National Parole Board, however well intended it may have been, had no jurisdiction, in the circumstances of this case, to suspend her mandatory supervision and direct that she be detained in custody. I set out below my reasons for arriving at that conclusion. Earned remission The statutory provisions which determine the date of the release of the respondent from custody are to be found in s. 24(1) of the Penitentiary Act, as amended, set out below: 24(1) Subject to section 24.2, every inmate may be credited with fifteen days of remission of his sentence in respect of each month and with a number of days calculated on a pro rata basis in respect of each incomplete month during which he has applied himself industriously, as determined in accordance with any rules made by the Commissioner in that behalf, to the program of the penitentiary in which he is imprisoned. The formula set forth above, when read with the other

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provisions of the statute, actually produces a maximum earned remission of one-third of the sentence. The earned remission so provided can be forfeited, in whole or in part, by the application of s. 24.1(1) which reads: 24.1(1) Every inmate who, having been credited with earned remission, is convicted in disciplinary court of any disciplinary offence is liable to forfeit, in whole or in part, the earned remission that stands to his credit and that accrued after the coming into force of this section, but no such forfeiture of more than thirty days shall be valid without the concurrence of the Commissioner or an officer of the Service designated by him, or more than ninety days without the concurrence of the Minister. In the case of Marcotte v. Deputy A.-G. Can. (1974), 19 C.C.C. (2d) 257, 51 D.L.R. (3d) 259, [1976] 1 S.C.R. 108, the Supreme Court of Canada was called upon to consider the now repealed section of the Penitentiary Act which related to statutory remission. Dickson J. in part, determined the effect of that section as it then read at p. 259 C.C.C., pp. 261-2 D.L.R.: Section 22 of the Penitentiary Act contains, in my opinion, an entire code governing the grant and the forfeiture of statutory remission. Every person sentenced to penitentiary for a fixed term is entitled as of right to be credited with statutory remission, "upon being received into a penitentiary". With great respect for those holding the contrary view, I cannot find in the language of s. 22 any substantial support for the contention that the statutory remission assured by s. 22(1) is a deferred credit which does not accrue to the inmate until such time as statutory remission, earned remission and time served equal the length of the sentence. It seems to me from s. 22(3) and (4) that the credit of statutory remission upon entering penitentiary is a real and immediate entitlement and not an elusive expectation, for one cannot forfeit what one does not have. It is true that the time off for which s. 22(1) provides is subject to good conduct but the conduct giving rise to forfeiture of remission credited, indeed the only conduct

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which the Penitentiary Act recognizes expressly as giving rise to forfeiture, is that spelled out in s. 22(3), conviction in a disciplinary Court for a disciplinary offence and in s. 22(4), escape or attempted escape. (Emphasis added.) The language of the present provisions relating to earned remission is to like effect and, in my opinion, the observations of Dickson J. in the Marcotte case, supra, are equally applicable to the case of earned remission. Indeed, it was conceded that in so far as the Penitentiary Act is concerned, the correctional authorities had no right to continue to hold the respondent in custody after December 14, 1982. Prior to the Criminal Law Amendment Act, 1968-69 (Can.), c. 38, unlike the case of a person under parole, anyone released from a penitentiary by reason of the provisions of the Penitentiary Act relating to earned remission was not subject to the supervision of the National Parole Board while at large for the period of the balance of the sentence imposed by the court. In the Report of the Canadian Committee on Corrections delivered on March 31, 1969, the following comments relevant to this practice were made at p. 348: Statutory Conditional Release Canada's experience, like that in most other countries, has been that during the early development of parole releases were made cautiously and were granted to the better risks among prison inmates. This is a necessary stage in development, particularly in view of the fact that the occasional dramatic incident whereby a parolee commits some violent crime tends to create strong public reaction against parole as a whole. Increasingly, however, it is being pointed out that the practice of parolling only the better risks means that those inmates who are potentially the most dangerous to society are still, as a rule, being released

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directly into full freedom in the community without the intermediate step represented by parole. At present, about 25 per cent of inmates coming out of the federal penitentiaries do go on parole. The other 75 per cent come out without any formal supervision, although many of them do apply voluntarily for assistance to the private after-care agencies. Since there are about 3,500 releases from the penitentiaries each year, the number who are being released without supervision is considerable. Among them are many of the most dangerous who could not meet the requirements for parole. And at p. 350: The aim should be to develop a system under which almost everyone would be released under some form of supervision. It is best if he is released at the point at which the chances for his successful reintroduction to community life would be highest. This means the extension of parole as we now know it to every case possible. However, there will be many who will not qualify for parole and they should also be subject to supervision. This can be accomplished by making the period of statutory remission a period of supervision in the community, subject to the same procedures that apply to parole. This means the releasee would be subject to conditions and to return to complete his sentence in the institution if he violates those provisions. He should also receive the same kind of assistance and control through supervision that applies to parolees. For practical reasons, there would be little purpose in supervising an inmate whose statutory remission period is only a few days in length. Perhaps a period of sixty days should be seen as the minimum when supervision could be effective. Since the success rate among these inmates is apt to be less than among those who qualify for parole, some name for this program other than parole should be used so that there

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will be no confusion between the success rates of parole and the success rates of this new program. The Committee recommends that a system called Statutory Conditional Release be introduced through appropriate legislation to make any period of statutory release longer than sixty days subject to the same rules and conditions that govern parole. Such legislation should increase the number of inmates applying for parole instead of waiting for conditional release since either form of release will imply supervision. It will prevent the unconditional release of so many inmates who need supervision but do not receive it because it cannot be imposed under present circumstances. In the case of Ex parte Beaucage (1976), 31 C.C.C. (2d) 219, 34 C.R.N.S. 127, the procedure in place with respect to those at large and on statutory or earned remission prior to the amendment of 1968-69 was commented upon by Kelly J.A. as follows at p. 226: Notwithstanding frequent references to remission none of the attributes or incidents of remission were ever spelled out in the statutes prior to 1969 and no definition of the term is found in any of the earlier enactments. The correctional authorities consistently gave effect to remission so that the period required to be served under the sentence was reduced by the amount of remission standing to the credit of the inmate: the period of remission was treated as time not required to be served in custody and time during which the correctional authorities had no responsibility for the former inmate and during which the former inmate had no responsibility to the correctional authorities for his conduct. The released inmate not having been released on parole, the Parole Board had no authority over him. As a result, when an inmate had remained in custody for a period equal to the term of imprisonment to which he had been sentenced less the time equal to the remission standing to his credit, the inmate was released without any responsibility on the part of the inmate to the correctional
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authorities for his conduct during the balance of the term of that imprisonment. While the practice of the correctional authorities was not at variance with any incident attached to remission by Parliament, neither the officials of the penitentiary service nor the Parole Board could attach to remission any incident which had not been laid down by Parliament. In contrast to the situation which had prevailed previously, when s. 11B (now s. 15) of the Parole Act became effective, mandatory supervision did become, by statute, one of the essential ingredients of statutory or other remission, and an inmate released otherwise than on parole, became subject to mandatory supervision for the period equal in length to the remission standing to his credit at the time of his release. It would appear that consequent upon the recommendations contained in the Report of the Canadian Committee on Corrections, substantial amendments were made to the Parole Act by the Criminal Law Amendment Act, 1968-69. They have been presently consolidated in the current statutes. The relevant provisions of the Parole Act are as follows: 10(1) The Board may . . . . . (b) impose any terms and conditions that it considers desirable in respect of an inmate who is subject to mandatory supervision; . . . . . 12. Where (a) the Board grants parole to an inmate, or

(b) an inmate is released from imprisonment subject to mandatory supervision,

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the Board shall issue a parole certificate or mandatory supervision certificate under the seal of the Board and in a form prescribed by it, and shall cause the certificate to be delivered to the inmate and a copy thereof to be delivered to the inmate's parole supervisor, if any. . . . . .
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15(1) Where an inmate is released from imprisonment, prior to the expiration of his sentence according to law, solely as a result of remission, including earned remission, and the term of such remission exceeds sixty days, he shall, notwithstanding any other Act, be subject to mandatory supervision commencing upon his release and continuing for the duration of such remission. (2) Paragraph 10(1)(e), section 11, section 13 and sections 16 to 21 apply to an inmate who is subject to mandatory supervision as though he were a paroled inmate on parole and as though the terms and conditions of his mandatory supervision were terms and conditions of his parole. (Emphasis added.) It is, I think, clear that the entitlement to be released from custody as a result of earned remission and the forfeiture in whole or in part of such earned remission is to be found solely in the Penitentiary Act, and until the time of release of an inmate as a result of earned remission, the National Parole Board has been given no authority to intervene. It is only upon release from imprisonment that an inmate becomes subject to mandatory supervision commencing upon release and continuing for the duration of the remission. With respect to such an inmate the Parole Board may now impose terms and conditions that it considers desirable in respect of an inmate who is subject to mandatory supervision as if such terms and conditions were terms and conditions of parole. The provisions of the Parole Act relating to suspension or revocation are made applicable to an inmate who is subject to mandatory supervision as though he were a paroled inmate on

parole and as though the terms and conditions of his mandatory supervision were terms and conditions of his parole. Parole Historically, a person admitted to parole at a time considered appropriate by a Parole Board before the expiration of the sentence imposed has been released subject to terms and conditions and under the supervision of the correctional authorities while at large in society for the period representing the balance of the sentence and subject to return to prison if he fails to comply with the conditions governing his release. The period of release is designed to facilitate the transition of the offender from the highly controlled life of a penal institution to the freedom of community life, but is subject to suspension and revocation. Power to grant parole is to be found in s. 10 of the Parole Act. The relevant portion of which provides as follows: 10(1) The Board may (a) grant parole to an inmate, subject to any terms or conditions it considers desirable, if the Board considers that (i) in the case of a grant of parole other than day parole, the inmate has derived the maximum benefit from imprisonment, (ii) the reform and rehabilitation of the inmate will be aided by the grant of parole, and (iii) the release of the inmate on parole would not constitute an undue risk to society; Section 16 of the Parole Act is the present provision which governs the exercise of the authority of the National Parole Board to suspend and revoke parole. The relevant portion of which is set out hereunder:

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16(1) A member of the Board or a person designated by the Chairman, when a breach of a term or condition of parole occurs or when the Board or person is satisfied that it is necessary or desirable to do so in order to prevent a breach of any term or condition of parole or to protect society, may, by a warrant in writing signed by him, (a) suspend any parole other than a parole that has been discharged; (b) authorize the apprehension of a paroled inmate; and

(c) recommit an inmate to custody until the suspension of his parole is cancelled or his parole is revoked. . . . . . (3) The person by whom a warrant is signed pursuant to subsection (1) or any other person designated by the Chairman for the purpose shall forthwith after the recommitment of the paroled inmate named therein review the case and, within fourteen days after the recommitment or such shorter period as may be directed by the Board, either cancel the suspension or refer the case to the Board. (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 completion 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. It can hardly be urged that the power granted to the National Parole Board by this section to suspend and revoke parole can be based solely on pre-release conduct and exercised immediately upon release of a paroled inmate from a prison. The time when one becomes eligible for parole is first dependent upon the seriousness of the offence committed and, when

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eligible, parole is not granted to an inmate unless the Board considers, amongst other matters, that reform and rehabilitation of the inmate will be aided by the grant of parole and the release of the inmate on parole would not constitute an undue risk to society. Thus the inmate's prerelease conduct has been fully considered before parole is granted.
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The language of s. 16 also makes it clear, in my opinion, that it becomes applicable only when the inmate is at large. This section does not authorize the apprehension and recommittal into custody of an inmate immediately after he has been granted parole and the moment he steps outside the prison walls. Conclusion It is conceded that whatever power the National Parole Board has to suspend an inmate's release under mandatory supervision, it only arises subsequent to the inmate's release from imprisonment. In this case it can hardly be said that the respondent had ever been released in the sense of being at large even assuming that she had stepped outside the penitentiary's premises to be immediately apprehended and returned to custody. It is also to be noted, as has already been pointed out, that in her case there does not appear to have been a mandatory supervision certificate issued as is required by s. 12 of the Parole Act, nor were there any terms or conditions imposed upon her "release". It follows that since the respondent was entitled to be released from imprisonment on December 14, 1982, and was denied that right, she was subsequently illegally detained. However, I do not rest this judgment on such narrow grounds. The real issue in this appeal is whether the National Parole Board, in effect, is entitled to forfeit, in whole or in part, the period of earned remission immediately upon the release of an inmate who, as a result of earned remission, is entitled to be released from imprisonment under mandatory supervision for

I do not find ambiguity in the relevant statutory provisions. But if I had concluded that those provisions were ambiguous or equivocal, I would have arrived at the same result in this case and would have found comfort in doing so by adopting the following statement of Dickson J. from his judgment in Marcotte v. Deputy A.-G. Can. (1974), 19 C.C.C. (2d) 257 at p. 262, 51 D.L.R. (3d) 259 at p. 264, [1976] 1 S.C.R. 108: 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. By reason of the interpretation which I have given to the relevant statutes, I do not find it necessary to deal with the supplementary submissions made by counsel for the respondent based on the Canadian Charter of Rights and Freedoms. For these reasons, as well as those of Eberle J., I would dismiss this appeal.

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the period of such earned remission. That is what was sought to be done in this case by the use of the "gating'' procedure. For the reasons earlier expressed, I do not think that the National Parole Board has presently such authority. An inmate who is eligible for release as a result of earned remission pursuant to the provisions of the Penitentiary Act, over which the National Parole Board has no control, is entitled to be released under mandatory supervision subject to such terms and conditions as may be imposed by the National Parole Board. The power to suspend or revoke such mandatory supervision pursuant to s. 16 of the Parole Act can only be invoked by the National Parole Board by reason of the post-release conduct of the inmate while at large as if he were a paroled inmate and on parole.

Appeal dismissed. NOTE: An appeal from the above judgment of the Ontario Court of Appeal to the Supreme Court of Canada, which was heard at the same time as an appeal from the judgment of the Alberta Court of Appeal in Re Oag, March 28, 1983, was dismissed (Laskin C.J.C., Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.) on May 17, 1983. The following judgment was delivered for the court: "We are all of the opinion that the Crown's appeal against Marlene Moore fails and that the appeal of Oag must be allowed. It is our view that the judgment of Dubin J.A. in the Ontario Court of Appeal in the Moore case as extended by Seaton J.A. in the Truscott case [Truscott v. Director of Mountain Institution, March 25, 1983, summarized 9 W.C.B. 360], deals properly with the relevant sections of the Parole Act, R.S.C. 1970, c. P-2, and of the Penitentiary Act, R.S.C. 1970, c. P-6. It follows that Marlene Moore's release stands, that the judgment of the Alberta Court of Appeal in respect of Oag must be set aside and that Oag is entitled to his immediate release."

I. G. Whitehall, Q.C., and G. R. Garton, for the Crown, appellant. D. P. Cole and A. S. Manson, for accused, respondent.

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