127. (1) Entitlement - Subject to any provision of this Act, an offender sentenced, committed or transferred to penitentiary is entitled to be released on the date determined in accordance with this section and to remain at large until the expiration of the sentence according to law.

         (2) Sentence for past offences - Subject to this section, the statutory release date of an offender sentenced before November 1, 1992 to imprisonment for one or more offences shall be determined by crediting against the sentence

any remission, statutory or earned, standing to the offender's credit on that day; and

the maximum remission that could have been earned on the balance of the sentence pursuant to the Penitentiary Act or the Prisons and Reformatories Act, as those Acts read immediately before that day.

         (3) Sentence for future offences - Subject to this section, the statutory release date of an offender sentenced on or after November 1, 1992 to imprisonment for one or more offences is the day on which the offender completes two thirds of the sentence.

         (4) Sentences for past and future offences - Subject to this section, the statutory release date of an offender sentenced before November 1, 1992 to imprisonment for one or more offences and sentenced on or after November 1, 1992 to imprisonment for one or more offences is the later of the dates determined in accordance with subsections (2) and (3).

         (5) Where parole or statutory release revoked - Subject to subsections 130(4) and (6), the statutory release date of an offender whose parole or statutory release has been revoked is the day on which the offender has served two thirds of the unexpired portion of the sentence after being recommitted to custody as a result of a suspension or a revocation under section 135.

         (6) Failure to earn and forfeiture of remission - Where an offender receives a sentence to be served in a provincial correctional facility and fails to earn or forfeits any remission under the Prisons and Reformatories Act and is transferred to penitentiary, otherwise than pursuant to an agreement entered into under paragraph 16(1)(b), the offender is not entitled to be released until the day on which the offender has served

the period of imprisonment that the offender would have been required to serve under this section if the offender had not failed to earn or had not forfeited the remission; and

the period of imprisonment equal to the remission that the offender failed to earn or forfeited and that was not recredited under that Act.

         (7) Supervision after release - An offender sentenced, committed or transferred (otherwise than pursuant to an agreement entered into under sub- section 16(1)) to penitentiary on or after August 1, 1970 who is released on statutory release is subject to supervision in accordance with this Act, but no other offender released under this section is subject to supervision.

[1992, c. 20, s. 127; 1995, c. 42, s. 41; 1999, c. 31, s. 66(E). ]

Cunningham v Canada - [1993] 2 S.C.R. 143, 80 C.C.C. (3d) 492

- This prisoner had been sentenced when, under the Parole Act, he was automatically entitled to be released on mandatory supervision if found to be of good behaviour, after serving two-thirds of his sentence. The Parole Act was then amended to allow the NPB to deny release under certain circumstances. The court found that the liberty interest under s7 of the Charter was adversely affected by this change, and that the fact of incarceration did not preclude a further infringement on liberty. The change in the nature of the sentence, once the NPB denied release, was found to be significant and worthy of s7 Charter protection, but the amendment was saved by s1 of the Charter and found to be in accordance with principles of fundamental justice.

Frankie v. Canada (Commissioner of Corrections) - (1993), 82 C.C.C. (3d) 160, 22 C.R. (4th) 213, [1993] 3 F.C. 3 (C.A.)

- A different formula to that provided by subsection (2) is used to determine a release date for prisoners who do not fall under this subsection, whose earned remission cannot be carried over at the time of parole revocation.

Smallwood v. Kent Institution - (1994), 24 W.C.B. (2d) 34 (BCSC), 1994 CanLII 2913 (BC S.C.)

- Where day parole was granted prior to this Act, but suspended and then revoked following this Act, eligibility for statutory release is subject to s126(5) and s138(2). Two-thirds of the portion of the sentence that has not expired upon being put into custody again must be served before one is eligible for statutory release.

Ahern v. Ferndale Institution - (1995), 26 W.C.B. (2d) 557 (B.C.S.C.), 1995 CanLII 1758 (BC S.C.)

- An application for habeas corpus with certiorari in aid in support of the claim that the correct calculation of statutory release would allow for immediate release was held to be moot when the date of judgment would be delivered only after release of the applicant on parole. The Court found that any new determination of a release date, should it become necessary, would not be dependent on the statutory interpretation sought in this claim.