EARNED REMISSION

EARNED REMISSION

6. (1) Remission - Every prisoner serving a sentence, other than a sentence on conviction for criminal or civil contempt of court where the sentence includes a requirement that the prisoner return to that court, shall be credited with fifteen days of remission of the 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 the prisoner has earned that remission by obeying prison rules and conditions governing temporary absence and by actively participating in programs, other than full parole, designed to promote prisoners' rehabilitation and reintegration as determined in accordance with any regulations made by the lieutenant governor of the province in which the prisoner is imprisoned.
(2) Computing remission credits - The first credit of earned remission pursuant to subsection (1) shall be made not later than the end of the month next following the month the prisoner is received into a prison and thereafter a credit of earned remission shall be made at intervals of not more than three months.
(3) Idem - Where a prisoner was received into a prison before July 1, 1978, the date of the first credit of earned remission referred to in subsection (2) is August 31, 1978 and the subsequent intervals run from that date.
(4) Forfeiture - Every prisoner who, having been credited with earned remission, commits any breach of the prison rules is, at the discretion of the person who determines that the breach has been committed, liable to forfeit, in whole or in part, the earned remission that stands to the credit of the prisoner and that accrued to the prisoner after July 1, 1978.
(4.1) Idem - Where the parole of a prisoner who has been credited with remission is revoked under the Corrections and Conditional Release Act, the prisoner shall forfeit that remission.
(4.2) Idem - A prisoner whose parole has been terminated under the Corrections and Conditional Release Act is not liable to forfeit any remission with which the prisoner was credited pursuant to this Act.
(5) Effect of remission - Where remission is credited against a sentence being served by a prisoner, other than a prisoner to whom subsection 127(1) of the Corrections and Conditional Release Act applies, the prisoner is entitled to be released from imprisonment before the expiration of the sentence.
(6) Transfer from penitentiary to prison - Where a prisoner is transferred from a penitentiary to a prison, otherwise than pursuant to an agreement entered into under paragraph 16(1)(a) of the Corrections and Conditional Release Act, the prisoner is credited with full remission under this section for the portion of the sentence that the offender served in the penitentiary as if that portion of the sentence had been served in a prison.
(7) Idem - Where a prisoner is transferred from a penitentiary to a prison pursuant to an agreement entered into under paragraph 16(1)(a) of the Corrections and Conditional Release Act, the prisoner is entitled to be released, in accordance with section 127 of that Act, on the day on which the prisoner has served the period determined in accordance with that section and a period of imprisonment equal to any remission that the offender fails to earn or forfeits and that is not recredited under this Act.
(8) Recrediting by institutional head - The institutional head may recredit any remission that was forfeited under subsection (4).
(9) Recrediting by parole board - The National Parole Board or a provincial parole board may recredit any remission that was forfeited under subsection (4.1).
(10) Where parole suspended and then revoked - Where a prisoner is reincarcerated following the suspension of parole and the parole is subsequently revoked, the prisoner shall be credited with remission in respect of the portion of the sentence that was served during the suspension.
[RS, 1985, cP-20, s6; RS, 1985, c35 (2nd Supp), s32; 1992, c20, s206; 1995, c42, s82]

*Judicial Consideration* -

Shiminousky v Robinson et al - (1982), 64 CCC (2d) 187 (BCSC)
	-The earned remission provided for in this section has the same characteristics as statutory remission under the Parole Act and Penitentiary Act as considered in Marcotte v Deputy Attorney General of Canada (1974), 19 CCC (2d) 257 (SCC). Consequently, once earned remission is credited it is a real and immediate entitlement subject to forfeiture only on the conditions set out in the legislation. Consequently, in order to calculate the "unexpired portion of a term of imprisonment" any credit for remission which has not then been revoked or forfeited must be taken into account. Thus, in calculating the enexpired portion of a remaining term of the sentence imposed under Section 659(5) of the Criminal Code, the earned remission is to be taken into account resulting in the applicant, in this case, having a remaining term amounting to less than two years which results in his being incarcerated in a provincial facility instead of a federal penitentiary.

Editorial Note - See Lylick v AG Canada et al (infra) where Muldoon, J of the Federal Court Trial Division came to a contrary conclusion in the context of determining the appropriate place of detention for a plaintiff prisoner seeking declaration of an unlawful detainment based on the construction of s659(5) of the Criminal Code and s20 (formerly s14) of the Parole Act.

Lylick v AG Canada, Commissioner of Corrections and Warden of Drumheller Institution- [1985] 3 WWR 50 (FCTD)
	- The plaintiff sought a declaration that he was unlawfully detained in a federal penitentiary, arguing that to determine the unexpired portion of a term of imprisonment for purposes of s659(5) of the Criminal Code, he should be credited with earned remission accumulated to date as well as the maximum earned remission which could be calculated in regard to the term of imprisonment to which he is at that time sentenced. The defendants argued that neither the actual nor the potential earned remission was to be credited against the aggregate of the unexpired portions of his terms of imprisonment. At issue was whether the plaintiff prisoner should be imprisoned in a federal or provincial prison which in turn fell to be determined by an interpretation of s659(5) of the Criminal Code. The court held that in calculating the term of imprisonment and hence the place of detention pursuant to s659(5) of the Criminal Code, the prisoner's actual or potential earned remission was not to be taken into account in determining or calculating the unexpired portion of aggregate terms of imprisonment. Section 14 of the Parole Act applies to s659 of the Code so that all terms of imprisonment are deemed to merge into one term of imprisonment commencing on the earliest day on which any of the terms commenced and ending on the expiration of the last day of such terms. Consequently, pursuant to s659(5), only the days actually served in prison are to be deducted at the time when the subsequent term of imprisonment is imposed and not any earned remission.
	In arriving at this conclusion, the court distinguished the decision of the Supreme Court of Canada in Marcotte v AG Canada [1976] 1 SCR 108, 19 CCC (2d) 257 as a decision dealing with statutory remission as distinct from earned remission. Statutory remission was held, in Marcotte, to be a credit upon entering prison which was a real and immediate entitlement and not an exclusive expectation. Earned remission, on the other hand, is credited only after it has been earned. With respect to earned remission, the court referred to Foslette v Director of Mountain Institution -Unreported, December 7,1981, No. CC81126, Vancouver (BCSC). The court distinguished the earlier decision of Esson, J in Shiminousky v BC Commissioner of Corrections (Robinson et all (1982) 64 CCC (2d) 187, 33 BCLR 1 (sub nom Shiminousky and R) (BCSC) where a contrary conclusion was reached but apparently without reference to s14 of the Parole Act which provides for the merger of sentences and which expressly provides that it is applicable in the construction of s659 of the Criminal Code.

R v Casserley - (1982), 65 CCC (2d) 439 (Ont Prov Ct)
	- The accused was convicted of robbery and sentenced to imprisonment for 90 days to be served intermittently on weekends and to probation when not in custody. He was informed that under a Regulation pursuant to the Ontario Ministry of Correctional Services Act, 1978, he was required to pay $10.00 per weekend for room and board. The Regulation provided that a refusal or neglect to pay the fee amounted to misconduct. He did not pay the full or proper amounts and was involved in four misconduct hearings as a result of which earned remission was forfeited and his eligibility to earn certain earned remission was suspended in accordance with the disciplinary regulation. The court noted section 6 of the Prisons and Reformatories Act and the fact that no mention is made regarding the notion of "suspension of the eligibility of an inmate to earn remission". It also noted that the section does not set out the limit to which a province can go in enacting rules the breach of which exposes an inmate to loss of remission. Consequently, the court held that the Ontario Regulation was not in its pith and substance concerned with an inmate's good conduct and discipline and that the Regulation did not deal with the time "during which the prisoner has applied himself industriously as determined in accordance with any rules made by the Lieutenant Governor...” but rather contemplates that an accused when not in confinement may be gainfully employed and required to pay monies out of any such earnings while on probation to help defray the costs of his keep while in custody. The court held that the effect of the Regulation was to change somewhat the concept of the remission so far as it deals with intermittent sentences to the extent that the inmate is deprived of his remission not because of that conduct while an inmate but because he does not pay monies out of his earnings or savings gained while not in confinement and while on probation. This puts the inmate in a position that he might keep his remission not because he earns it but because he pays for it. Consequently, the Regulation was ultra vires the provincial government.

R v Casserley - (1982), 69 CCC (2d) 126, 30 CR (3d) 609, 38 OR (2d) 313, 139 DLR (3d) 609 (Ont CA)
	- The above decision was appealed by the Crown on July 12, 1982. Held: Appeal dismissed. Forfeiture was invalid as it conflicted with scheme under s6 of Prisons and Reformatories Act where applied to a person serving an intermittent sentence on weekends. Onto Reg. 515/78 looked to money earned when accused was not a prisoner and discipline therefore was not for bad conduct while an inmate. Return of fees paid by accused was refused.
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