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Federal Court Decision #A-451-85 - CRUPI, CARM v. COMMISSION

JUDGMENT OF THE FEDERAL COURT OF APPEAL

Date:
March 27, 1986

Docket:
A-451-85

Umpire's Decision:
CUB 10387

CORAM :

HEALD J.
RYAN J.
MacGUIGAN J.

IN THE MATTER OF AN APPLICATION UNDER SECTION 28 OF THE FEDERAL COURT ACT

BETWEEN :

CARM CRUPI,

applicant,

-and-

CANADA EMPLOYMENT AND IMMIGRATION COMMISSION,

respondent.

Heard at Ottawa on Thursday, January 16, 1986.

REASONS FOR JUDGMENT
(Judgment rendered at Ottawa on
Thursday, March 27, 1986)

HEALD J.:

I have had the advantage of reading the Reasons for Judgment herein of my brother, MacGuigan J. However, I reach a different conclusion with respect to the questions raised by this section 28 application. In my view the application should be allowed. I propose in these reasons to develop my rationale for so concluding.

Mr. Justice MacGuigan has stated the facts in some detail. I do not propose to repeat his detailed recital but it will be necessary, in my view, to emphasize what I consider to be the determining factual circumstances. The issue to be determined is whether the applicant, in the circumstances of this case, could be said to be "an inmate of any prison or similar institution;" as that expression is used in section 45 of the Act. The applicant received benefits from March 18, 1984 until May 21, 1984. On May 17, 1984, he was arrested and charged with an offence under the Criminal Code by the Nepean Police. The nature of the offence does not appear on the record. On May 18, 1984, he was remanded for a sixty day mental health assessment to Penetanguishene Mental Health Centre, which remand was said to be based on an opinion given by a Dr. Blair of Ottawa. He was, in fact, held at the Royal Ottawa Hospital until May 22, 1984, on which date he went to Penetanguishene. The authority for the sixty day remand is said to be contained in subsection 738(6)(b) of the Criminal Code.

Subsections (5) and (6) of section 738 read as follows:

738. ...

(5) Notwithstanding subsection (1), the summary conviction court may, at any time before convicting a defendant or making an order against him or dismissing the information, as the case may be, when of the opinion, supported by the evidence, or, where the prosecutor and defendant consent, by the report in writing, of at least one duly qualified medical practitioner, that there is reason to believe that the defendant is mentally ill, by order in writing.

(a) direct the defendant to attend, at a place or before a person specified therein, for observation; or

(b) remand the defendant to such custody as the court directs for observation for a period not exceeding thirty days.

(6) Notwithstanding subsection (5), a summary conviction court may remand the defendant in accordance therewith

(a) for a period not exceeding thirty days without having heard the evidence or considered the report of a duly qualified medical practitioner where compelling circumstances exist for so doing and where a medical practitioner is readily available to examine the accused and give evidence or submit a report and;

(b) for a period of more than thirty days but not exceeding sixty days where it is satisfied that observation for such a period is required in all the circumstances of the case and that opinion is supported by the evidence or, where the prosecutor and the accused consent, by the report in writing, of at least one duly qualified medical practitioner.

The applicant had not been refused bail at either a show cause or bail review hearing. He left Penetanguishene at the expiration of the sixty day remand period which was prior to the date of his trial. He returned to Ottawa on July 18, 1984 and was not in custody at that time. Although the record is not absolutely clear as to the date when the criminal charge against him was disposed of, it appears that sometime between July 18, 1984 and July 20, 1984, he was found guilty of the charge and placed on probation. On July 20, the applicant advised the Commission by telephone that "he had been cleared by the courts" and that he was "on probation with the Ministry of Correctional Services." He was advised by the Commission that the disentitlement would be terminated as of July 18, 1984. The applicant then requested payment of sick benefits for the period May 22, 1984 to July 18, 1984 and in support thereof submitted a medical certificate dated June 26, 1984 and signed by Dr. E.T. Barker, a medical doctor at the Medical Centre at Penetanguishene. In that certificate, Dr. Barker said that the applicant was "Presently being assessed on a warrant of remand." The applicant also presented a further medical certificate dated August 16, 1984 and signed by Dr. R. Bacmaceda, a medical doctor at the Royal Ottawa Hospital which diagnosed his main incapacitating condition as "Manic Depressive Illness R/O Paranoid Schizophrenia." The Commission's Notice of Refusal to the applicant is dated June 1, 1984 and states:

...you are not entitled to receive benefit under Section 45(a) of the Unemployment Insurance Act and Regulation 55 as you are an inmate of an institution. Payment of benefit is suspended from 22 May, 1984 for so long as you are an inmate.

In determining the proper construction to be given the words "an inmate of any prison or similar institution", as used in section 45, I find it instructive to compare the present section 45 with the previous section. The present section 45 reads:

45. Except under section 31, a claimant is not entitled to receive benefit for any period during which

(a) he is an inmate of any prison or similar institution; or

(b) he is not in Canada

except as may otherwise be prescribed.

Section 45, prior to the amendment made by S.C. 1974-75-76, c.80, s.17, read:

45. A claimant is not entitled to receive benefit while he is an inmate of any prison or penitentiary or an institution supported wholly or partly out of public funds or, while he is resident, whether temporarily or permanently, out of Canada, except as may otherwise be provided by the regulations.

Clearly the former section 45 had much wider parameters than the present section 45. It seems certain that if the case at bar were being adjudicated under the previous section 45, the applicant would have been disqualified since it can be assumed, in my view, that the Penetanguishene Mental Health Centre is supported by public funds. Accordingly, by this amendment, hospitals an other publicly funded institutions have been removed from the reach of section 45 which is now restricted to prisons and institutions similar to prisons. The change in the language used in section 45 is clearly purposive and must be presumed to have some significance ¹.

The next step, in my view, is to adopt the contextual approach to the relevant words as used in section 45. The words must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament ². Part II of the Unemployment Insurance Act is entitled "Unemployment Insurance Benefits" and encompasses sections 16 to 58 inclusive. Sections 17 and 18(1) define and set out the number of weeks of insurable employment required during an applicant's qualifying period in order to establish his or her eligibility for benefits. Subsection (2) of section 18 provides for the extension of a qualifying period in certain circumstances. It reads:

18....

(2) Where a person proves in such manner as the Commission may direct that during any qualifying period mentioned in paragraphy (a) or subsection (1) he was not employed in insurable employment for the reason that he was for any week

(a) incapable of work by reason of any prescribed illness, injury, quarantine or pregnancy,

(b) confined in any gaol, penitentiary or other similar institution,

(c) in attendance at a course of instruction or other program to which he was referred by such authority as the Commission may designate, or

(d) in receipt of temporary total workmen's compensation payments for an illness or injury,

that qualifying period shall, for the purposes of this section, be extended by the aggregate of any such weeks.

Section 25 is also relevant and it provides:

25. A claimant is not entitled to be paid initial benefit for any working day in a benefit period for which he fails to prove that he was either

(a) capable of and available for work and unable to obtain suitable employment on that day, or

(b) incapable of work by reason of prescribed illness, injury or quarantine on that day, and that he would be otherwise available for work.

As I read section 25, it clearly prevents benefits from being paid to persons who have not proven their availability for work and their inability to find suitable work or their unavailability by reason of "prescribed illness, injury or quarantine...". As well, subsection 18(2) supra, provides for the extension of an applicant's qualifying period in certain specified situations. The circumstances described in subparagraphs (a), (b), (c) and (d) of subsection 18(2) have a common rationale. They all envisage a factual scenario in which the applicant is not available for employment through external circumstances beyond his or her control. Subparagraph (b) uses the expression "confined in any gaol, penitentiary or other similar institution". Subparagraph (a) provides for an extension for those individuals who are "incapable of work by reason of any prescribed illness, injury, quarantine or pregnancy".

Accordingly, it seems clear that Parliament intended to provide that claimants who are unavailable for employment by reason of "prescribed illness" are not to be disentitled to benefits. This is apparent from the provisions of subsection 18(2)(a) and 25(b) of the Act quoted supra. Regulation 47 goes on to set out the further requirements with respect to payment of sickness benefits. Regulation 47(1) provides:

47.(1) A claimant who, pursuant to paragraph 25(b) of the Act, alleges that he is incapable of work by reason of illness, injury or quarantine, shall at such time as the Commission may request and at his own expense furnish a certificate completed by a medical doctor or other person acceptable to the Commission supplying such information as the Commission may require with respect to the nature of the illness, injury or quarantine, the probable duration of the incapacity, and any other circumstance relating thereto.

Regulation 47(6) provides:

47.(6) Illness, injury or quarantine for the purposes of paragraphs 18(2)(a) and 25(b) and subsection 43(3) of the Act is any illness, injury or quarantine that renders a claimant incapable of performing the functions of his regular or usual employment or other suitable employment.

As noted by MacGuigan J., this applicant, in fact, submitted two medical certificates under this requirement. The one dated August 16, 1984 said that the applicant suffered from "Manic Depressive Illness R/O Paranoid Schizophrenia".

What then is to be deduced from this examination of the scheme of the Act and Regulations insofar as the circumstances of the instant case are concerned? It seems apparent that Parliament has made a clear distinction between inmates of penal institutions on the one hand, and, individuals suffering from illness, on the other hand. Both groups breach the general requirement of the Act with respect to availability for employment. Thereafter the Act and Regulations treat them quite differently as noted supra. Section 45 and subsection 18(2)(b) address the problem of unavailability due to confinement in penal institutions whereas Regulation 47 deals with those claimants who are unavailable for employment through illness. At first glance it would seem that this applicant meets the requirements of Regulation 47(6) since his illness rendered him "...incapable of performing the functions of his regular or usual employment or other suitable employment." In any event, when section 45 of the Act speaks of an institution similar to a prison, it clearly contemplates a gaol or a penitentiary (as described in subsection 18(2)(b)) or any other institution nearly corresponding to or having a general likeness to a prison ³. In my view, it cannot be seriously argued that in the scheme of the Act and Regulations a bona fide hospital can be said to be an institution similar to a prison.

The applicant was diagnosed by Drs. Blair, Barker and Bacmaceda as initially being suspected of suffering mental illness which was later confirmed. He was sent to the Penetanguishene Mental Health Centre because he was suspected of being mentally ill, and, therefore, of being unfit to stand trial. Before he went to the hospital at Penetanguishene, he spent four days at the Royal Ottawa Hospital for medical assessment. The applicant's detention was not "custodial" since there had been no show cause or bail hearing. It was not "punitive" either since he had not been convicted of any offence. As noted earlier herein, when he was released from that hospital he was not in custody, returning to Ottawa voluntarily. Since the remand to the Penetanguishene Hospital had neither a custodial or a punitive objective, I do not understand how an institution which, it is conceded, is clearly a hospital and which, in this case, treated this applicant as a person suspected of being ill, can somehow be said to be a prison or similar institution.

In my view, the majority of the Board of Referees appears to have been unduly influenced by an irrelevant factor – namely, the circumstance that the Mental Health Centre at Penetanguishene was part of a pentitentiary complex (Case, p. 34). Whether or not this was a fact established before the Board is irrelevant, in my view. The applicant was sent to two hospitals for medical reasons. To decide the issues in this claim for unemployment insurance benefits, it is quite irrelevant to know whether a particular hospital facility is part of some other type of complex. The hospital at Penetanguishene is no less a hospital simply because it happens to be situated beside a penitentiary. In the same way, the Royal Ottawa Hospital is no less a hospital because it happens to be located adjacent to a shopping centre. The majority Board concluded (Case, p. 34) that during the sixty day referral period the applicant was in "...pre-trial custody" or "...real custody pending trial."

As noted earlier herein, it is my view that the applicant's detention at Penetanguishene was not "custodial" since there had been no show cause or bail hearing nor was it "punitive" since he had not been convicted of any offence. It follows, therefore, that the majority Board erred in law in reaching this conclusion. With respect, I think the Umpire made the same fundamental error. I say this because of the definition of "prison" which he applied as being determinative in the factual situation at bar (Case, p. 111). Specifically, he referred to the definition of "prison" in Jowitt's Dictionary of English Law, (1959) as follows: "Jowitt's Dictionary tells us that prisons are places in which persons are kept either for safe custody until they have been tried for an offence of which they stand charged or for punishment after being tried and convicted." (Underlining mine).

It is clear that the learned Umpire thought that the portion which he underlined from Earl Jowitt's Dictionary referred to the factual situation in the case at bar. Likewise, he underlined similar definitions from Stroud's Judicial Dictionary and from Corpus Juris Secundus. The basis for all of these definitions reveal either a custodial or a punitive purpose. For the reasons given supra, it is my view that the purpose of the confinement at bar was neither custodial or punitive but was, rather, for a medical purpose. However, what is interesting about all of the definitions enumerated by the learned Umpire, is that, without exception, each definition employs the same test – what is the reason, purpose or object of the confinement? Applying that test, which, in my view is the correct test, it is evident, on these facts, that neither the Royal Ottawa hospital nor the Penetanguishene Mental Health Centre is a "prison or similar institution." They are both hospitals. During his sixty day remand this applicant was a patient in both hospitals and he was treated in both hospitals for a suspected illness. It follows, in my view, that during the relevant sixty day period commencing on May 18, 1984, the applicant was not an inmate of any prison or similar institution as that expression is used in section 45(a) of the Unemployment Insurance Act.

For these reasons, I would allow the section 28 application, set aside the decision of the Umpire and refer the matter back to an Umpire on the basis that the Board of Referees erred in law in holding that the Penetanguishene Mental Health Centre is an institution similar to a prison for the purposes of section 45 of the Unemployment Insurance Act.

"Darrel V. Heald"
J.F.C.C.

¹ See: Driedger, Construction of Statutes, 2nd Ed. p.127

² See: Driedger, Construction of Statutes, 2nd Ed. p.87

³ See Black's Law Dictionary, Fifth Edition, p.1240

RYAN J.:

I agree with Mr. Justice Heald that the section 28 application should be allowed and that the matter should be referred back to an umpire on the basis he indicates.

I agree with Mr. Justice Heald's Reasons subject, however, to the following observations.

Clearly, as Mr. Justice Heald properly notes, Mr. Crupi was not in custody in Penetanguishene because he had been convicted of a crime or because he was being held pending resumption of his trial. I would hesitate, however, to say that Mr. Crupi was not in custody. As I read paragraph 738(6)(b) along with paragraph 738(5)(b) of the Criminal Code, and they must be read together, Mr. Crupi's remand to the Penetanguishene Mental Health Centre must have been a remand in custody. Mr. Crupi was, therefore, present in the hospital (it is conceded that the Mental Health Centre is a hospital) in custody, but the custody was for the purpose of his being medically examined, a purpose particularly appropriate to a hospital, but not at all to a prison.

My further observations are simply by way of supplement to what Mr. Justice Heald has said.

A person can be an inmate of a prison or similar institution only if the institution in which he is present is in truth a prison or similar institution: that must be the nature of the institution itself. A patient in hospital on remand, as Mr. Crupi was, might feel from time to time as if he were in prison because he was being confined against his will, but that would not necessarily mean that the institution was a prison.

Mr. Justice Heald says that when section 45 of the Act speaks of a prison or a similar institution "... it clearly contemplates a jail or a penitentiary ... or any other institution nearly corresponding to or having a general likeness to a prison." I agree. I would merely add a suggestion to Mr. Justice Heald's reasons for this conclusion. The word "inmate" historically has had, and even now often has, rightly or wrongly, a pejorative ring. When used in conjunction with the words "prison" and "similar institution", it tars both expressions with the same brush. The words "inmate of any prison or similar institution" strongly suggest that the words "similar institution" must mean something very closely resembling a prison. Some common features, some points of resemblance could hardly be enough. The amendment to section 45 of the Act, referred to by Mr. Justice Heald, reinforces this reading.

That a hospital might receive patients from time to time on remand from a court for medical diagnosis could not in itself make of the hospital an institution similar to a prison: much more would be needed. And this would be so even though the ultimate purpose of such a remand might be to secure a medical opinion for use by the remanding court in the trial of the person remanded, which, of course, was the ultimate purpose of Mr. Crupi's remand.

Circumstances other than Mr. Crupi's remand in custody were. I realize, relied on by the respondent, but I do not see that any of those other matters could found a decision that the Mental Health Centre was a prison or similar institution. The finding that the Centre has "a maximum security facility" could hardly support a finding that the Centre is an institution "nearly corresponding to ... a prison": a mental care hospital might well have a security facility. Nor could the finding that the Centre was part of a "penitentiary complex", whatever that might mean, support a conclusion that the Centre was itself an institution similar to a prison. And I see nothing in any of the Board's other findings that could support such a conclusion.

I would note that I agree with Mr. Justice MacGuigan that the question whether Mr. Crupi could have proved that he satisfied the conditions stipulated in paragraph 25(b) of the Act is not an issue involved in this application.

"William F. Ryan"
J.

MacGuigan J.:

This section 28 application raises the single question whether an unemployment insurance claimant who is ordered by a Court to be remanded for psychiatric observation following a summary conviction charge is "an inmate of any prison or similar institution" under subsection 45(a) of the Unemployment Insurance Act ("the Act") and so disentitled to receive benefits during the period of remand.

The applicant made an initial application for regular unemployment insurance benefits in March, 1984. His claim was established as of March 18 and he was paid benefits from that date to May 21, 1984.

On May 17, 1984, he arrested by the Nepean Police and appeared in Provincial Court the next day. He was remanded by Court Order to the Penetanguishene Mental Health Centre for 60 days for psychiatric observation. He was in fact held at the Royal Ottawa Hospital until May 22, 1984, when he was admitted to Penetanguishene.

The Unemployment Insurance Commission ("the Commission") was advised by the Nepean Police Force on May 29 as to these events, which were verified by the Commission on June 1. On that date the Commission disentitled him from benefit as of May 22.

On July 18, 1984, the applicant was released from Penetanguishene and his disentitlement to benefits was subsequently terminated as of that date. The applicant requested payment of sick benefits for the period May 22 to July 18 and submitted medical certificates in support of this claim. When the Commission refused to change its decision, the applicant appealed to a Board of Referees. The decision of the majority of the Board on September 25, 1984, was as follows:

It is the conclusion of the majority of the Board that the claimant was in fact in pre-trial custody and that Penetanguishene is an institution which can be classified within the definition of Section 45A: "he is an inmate of any prison or similar institution". The definition could possibly be challenged as it was by Mr. MacDonald, that the Claimant was in a "hospital" and not as alleged "in a "similar institution" to a prison. The basis of the majority conclusion is; (a) that Mr. Crupi had been charged with an offence and was taken in custody (b) that he was remanded by a Court order on the advice of a Dr. Blair of the Provincial Court house for psychiatric assessment. (c) that he was first referred to the Royal Ottawa Hospital and then transferred to the Penetanguishene Mental Health Centre which is an institution with a maximum security facility (d) that the Claimant was in custody throughout his stay at Penetanguishene which is part of a Penitentiary complex and that he was also held for a period in the maximum security section of the institution. (e) That after serving a 60 days assessment period, Mr. Crupi was later convicted by due process of law and sentenced to a probation period. The "dénouement" of his probation can hardly be argued as proof that he was not in real custody pending trial, but rather as alleged by Mr. MacDonald that the Claimant was in reality a patient under assessment in a health facility which because of its more advanced resources was in fact the Penetanguishene Health Centre. The Insurance Officer was in our view, correct in his conclusion and no change should be made to his decision.

DECISION: That the decision of the Insurance Officer be upheld.

The minority decision was as follows:

As Chairman I am dissenting from the majority opinion on the following basis. Mr. Crupi was confined to the two institutions concerned for the purposes of assessing his disability and subsequently for treatment. He was not held for trial but was on a remand order. He was released prior to his trial. Therefore Mr. Crupi was basically not an inmate of an institution but rather was a patient. He was in fact ill and was being treated as such. Secondly the institutions concerned are mental hospitals, not prisons. The fact that Mr. Crupi was confined and not able to leave was irrelevant in this case. The relevant consideration is the mental illness of Mr. Crupi at that time. The conclusion of the Chairman is therefore that Section 45(a) of the Act does not apply in the case of Mr. Crupi.

The applicant subsequently appealed to an umpire under section 95 of the Act. The learned umpire held as follows on April 9, 1985:

To begin with, the relevant statutory provisions in this case is [sic] Section 45(a) of the Unemployment Insurance Act, 1971 and Section 55 of the Unemployment Insurance Regulations. They read as follows:

"45. Except under section 31, a claimant is not entitled to receive benefit for any period during which

(a) he is an inmate of any prison or similar institution;

55. A claimant who is an inmate of a prison or similar institution and has been granted parole, partial parole or temporary absence, or a certificate of availability for the purpose of seeking and accepting employment in the community, is not disentitled from receiving benefit by reason only of section 45 of this Act."

Counsel for the claimant strongly contended that for the period of time during which the claimant was at Penetanguishene Mental Health Centre, he was there as a patient. On the other hand Commission counsel equally stressed the fact that he was an inmate there. The Shorter Oxford English Dictionary speaks of an inmate as "one who dwells with others in the same house (now rare); an occupant along with others; indweller, inhabitant, occupier; dwelling in the same house with or in the house of another." Black's Law Dictionary refers to an inmate as "a person confined to a prison, penitentiary, or the like; a person who lodges or dwells in the house with another occupying different rooms, but using the same door for passing in and out of the house." Britannica World Language Dictionary defines inmate as one who lives in a place with others; an associate or mate in occupancy." The latter dictionary also describes an inmate as "one who is kept or confined in a prison, asylum or similar institution." As for patient, Britannica World Language Dictionary defines the word thus: "A person undergoing treatment for disease or injury."

Were the claimant at Penetanguishene but for a day or two, one could hardly have called him an inmate of the place. But in view of the length of time that he did spend at the institution there can hardly be any doubt that he became an inmate. However, that does not rule out the fact that he was also a patient at the Centre and so it is my view that he was both an inmate and a patient at Penetanguishene from May 22, 1984 until on or about July 20, 1984 when he was discharged from the institution.

With all due respect to counsel, the issue in this case does not turn on what was the claimant's status while at Penetanguishene Mental health Centre. The issue, in my considered judgment, is whether or not the Centre falls within the language of Section 45(a) of the Act. Put simply, was Penetanguishene "a prison or similar institution" for the claimant, Carm Crupi?

The next obvious question must be: what is a prison? Over 300 years ago, a brilliant English poet, Richard Lovelace, in his famous poem "To Althea: From Prison" gave to the world his never to be forgotten definition:

"Stone walls do not a prison make
nor iron bars a cage
Minds innocent and quiet take
that for an hermitage."

It was Maxwell on Interpretation of Statutes who reminded us at p. 6 that "the golden rule is that the words of a statute must prima facie be given their ordinary meaning." It was Lord Wensleydale in Grey v. Pearson (1857), 6 H.L.C. 61, who formulated the "golden rule" of construction when at p. 106 he stated as follows:

"In construing wills and, indeed, statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnancy or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and inconsistency but no further."

Applying the so-called "golden-rule" of construction and keeping in mind the ordinary common sense dictionary meaning of the words. I have no difficulty whatsoever in understanding the meaning of Section 45(a) of the Unemployment Insurance Act, 1971. The ordinary and grammatical sense of the word "prison" is to be found in several well-known publications of which I have selected four.

Black's Law Dictionary (1979) 5^th edition defines "prison" as a public building or other place for the confinement of persons whether as a punishment imposed by law or otherwise in the cause of the administration of justice," (my underlining).

Earl Jowitt's The Dictionary of English Law (1959) tells us that prisons are places in which persons are kept either for safe custody until they have been tried for an offence of which they stand charged or for punishment after being tried and convicted. (my underlining)

In Stroud's Judicial Dictionary we have the following definition of prison:

PRISON.(1) "Every place where any person is restrained of his liberty is a prison; as, if one take SANCTUARY and depart thence, he shall be said to 'break prison'" (Hobert and Stroud's Case, Cro. Car. 210); so, of a place where you are only at liberty on parole (ibid.); so, where "un fuit mis in les cippes come suspect de felony, et la vient un autre que luy lessa aler alarge &#8212 ces est felony per common ley, de frangentibus prisonis" (Dyer, 99, pl. 60). See further GAOL; Imprisonment. Probably a fuller definition of "prison" is "a place of restraint for the safe custody of a person to answer any action, personal or criminal" (Cowel), or of a person convicted of an offence or who for any cause is legally ordered into confinement. See further 2 Hawk. P.C. Ch. 18, s. 4; 10 Encyc. 402-404; BREAK OUT; ESCAPE; RESCUE; PRISONER.

(my underlining)

Finally, from 2 Corpus Juris Secundus, we have the following:

a. Prison

The word "prison" has been defined as a place of confinement for the safe custody of persons, in order to their answering in any action civil or criminal; a building for the safe custody or confinement of criminals and more specifically convicted criminals.

A prison is a place of confinement for the safe custody of persons, in order to their answering in any action, civil or criminal¹ places maintained by public authority for the detention of those confined under legal process² a building for the safe custody or confinement of criminals and more specifically convicted criminals.³ In a general sense the term may be said to include every place of, confinement under legal process or lawful arrest⁴ but usually it is specifically applied to the place of confinement of convicted criminals,⁵ and is used to designate an institution for the imprisonment of persons convicted of the more serious crimes.⁶ A prison is not a place of refuge for a criminal; it is for his punishment.⁷

(my underlining)

It goes without saying that the claimant originally had been charged with a criminal offence. Pursuant to this, he was remanded to the Penetanguishene Mental Health Centre and was held in the maximum security section of that institution. In due course after his release from Penetanguishene, he was tried for the offence for which he had been charged and on being found guilty, was released on probation. While I have much sympathy for the claimant who, I am satisfied, is endeavouring sincerely to re-establish himself as a respected and law-abiding citizen and for his efforts I commend him highly and wish him good luck, nevertheless I have no other course to follow on the uncontradicted facts of this case but to dismiss the claimant's appeal. For the period of time that he spent in Penetanguishene Mental Health Centre, he was in prison and hence under the clear context of Section 45(a) of the Act was not entitled to receive benefits.

There is another good reason why I must dismiss this appeal. The claimant specified clause (c) of Section 95 of the Act as grounds of his appeal. However, I shall touch upon all three clauses.

As to Section 95(a), I am satisfied that the Board of Referees did not fail to observe a principle of natural justice. The claimant was present before the Board of Referees together with his counsel and I have no doubt that they were given every opportunity to present his case. There is absolutely nothing to suggest that the Board was not impartial or that the Board was biased an therefore clause (a) of Section 95 is not applicable.

Insofar as Section 95(b) is concerned, as I have endeavoured to explain in the preceding paragraphs, I am satisfied beyond any question that the majority of the Board of Refereed did not commit any error of law with regard to any provision of the Unemployment Insurance Act, 1971, or with regard to the recognized jurisprudence touching upon the Act. Accordingly, Section 95(b) is not applicable herein.

As to Section 95(c), the questions which the Board of Referees was called upon to determine were unquestionably those that involved a pure appreciation of facts and circumstances established by proof. There is constant and impressive jurisprudence which holds that an Umpire &#8212 since the adoption of the new Section 95 of the Act &#8212 cannot overrule a decision of the Board of Referees or reject or modify in any way the conclusions reached by the Board, unless that decision or conclusions appear to be manifestly wrong in relation to the entire file, that is to say, that the finding of fact was made in a perverse and capricious manner. Even if I were tempted to agree with the claimant &#8212 which I could not do &#8212 I could not uphold his appeal unless it fell squarely within any one of the three clauses of Section 95. My very careful examination of the facts of this case indicates clearly that such is not the situation herein. Hence the appeal from the majority decision of the Board of Referees has to be dismissed.

There is no evidence in the record as to what Criminal Code power was relied upon by the Court for the remand order, but the parties agreed before us that the action was taken under subsection 738(6). In fact, under the Criminal Code a justice at a preliminary inquiry, a judge at the trial of an indictable offence, a summary conviction court, or a judge of the court of appeal all have similar powers to direct a psychiatric assessment. The relevant parts of the Code are as follows:

465. (1) A justice acting under this Part may ...

(i) direct an accused to attend, at a place or before a person specified in the order and within a time specified therein, for observation, or

(ii) remand an accused to such custody as the justice directs for observation for a period not exceeding thirty days,

where, in his opinion, supported by the evidence, or where the prosecutor and the accused consent, by the report in writing, of at least one duly qualified medical practitioner, there is reason to believe that

(iii) the accused may be mentally ill, or

(iv) the balance of the mind of the accused may be disturbed, where the accused is a female person charged with an offence-arising out of the death of her newly-born child;

(2) Notwithstanding paragraph (1)(c), a justice acting under this Part may remand an accused in accordance with that paragraph

(a) for a period not exceeding thirty days without having heard the evidence or considered the report of a duly qualified medical practitioner where compelling circumstances exist for so doing and where a medical practitioner is not readily available to examine the accused and give evidence or submit a report; and

(b) for a period of more than thirty days but not exceeding sixty days where he is satisfied that observation for such a period is required in all the circumstances of the case and his opinion is supported by the evidence or, where the prosecutor and the accused consent, by the report in writing, of a least on duly qualified medical practitioner.

(3) Where, as a result of observations made pursuant to an order issued under paragraph (1)(c), it appears to a justice that there is sufficient reason to doubt that the accused is, on account of insanity, capable of conducting his defence, the justice shall direct that an issue be tried whether the accused is then, on account of insanity, unfit to conduct his defence at the preliminary inquiry.

(4) Where the justice directs the trial of an issue under subsection (3), he shall proceed in accordance with section 543 in so far as that section may be applied.

543. (1) A court, judge or magistrate may, at any time before verdict, where it appears that there is sufficient reason to doubt that the accused is, on account of insanity, capable of conducting his defence, direct that an issue be tried whether the accused is then, on account of insanity, unfit to stand his trial.

(2) A court, judge or magistrate may, at any time before verdict or sentence, when of the opinion, supported by the evidence or, where the prosecutor and the accused consent, by the report in writing, of at least one duly qualified medical practitioner, that there is reason to believe that

(a) an accused is mentally ill, or

(b) that balance of the mind of an accused is disturbed, where the accused is a female person charged with an offence arising out of the death of her newly-born child,

by order in writing

(c) direct the accused to attend, at a place or before a person specified in the order and within a time specified therein, for observation, or

(d) remand the accused to such custody as the court, judge or magistrate directs for observation for a period not exceeding thirty days.

(2.1) Notwithstanding subsection (2), a court, judge or magistrate may remand an accused in accordance with that subsection

(a) for a period not exceeding thirty days without having heard the evidence or considered the report of a duly qualified medical practitioner where compelling circumstances exist for so doing and where a medical practitioner is not readily available to examine the accused and give evidence or submit a report; and

(3) Where it appears that there is sufficient reason to doubt that the accused is, on account of insanity, capable of conducting his defence, the court, judge or magistrate shall, if the accused is not represented by counsel, assign counsel to act on behalf of the accused.

(4) For the purposes of subsection (1), the following provisions apply, namely,

(a) where the issue arises before the close of the case of the prosecution, the court, judge or magistrate may postpone directing the trial of the issue until any time up to the opening of the case for the defence;

(b) where the trial is held or is to be held before a court composed of a judge and jury,

(i) if the judge directs the issue to be tried before the accused is given in charge to a jury for trial on the indictment, it shall be tried by twelve jurors, or in the Yukon, Territory and the Northwest Territories, by six jurors, and

(ii) if the judge directs the issue to be tried after the accused has been given in charge to a jury for trial on the indictment, the jury shall be sworn to try that issue in addition to the issue on which they are already sworn; and

(5) Where the verdict is that the accused is not unfit on account of insanity to stand his trial, the arraignment or the trial shall proceed as if no such issue had been directed.

(6) Where the verdict is that the accused is unfit on account of insanity to stand his trial, the court, judge or magistrate shall order that the accused be kept in custody until the pleasure of the lieutenant governor of the province is known, and any plea that has been pleaded shall be set aside and the jury shall be discharged.

545.(1) Where an accused is, pursuant to this Part, found to be insane, the lieutenant governor of the province in which he is detained may make an order

(a) for the safe custody of the accused in a place and manner directed by him, or

(b) if in his opinion it would be in the best interest of the accused and not contrary to the interest of the public, for the discharge of the accused either absolutely or subject to such conditions as he prescribes.

608.2 (1) A judge of the court of appeal may, by order in writing,

(a) direct an appellant to attend, at a place or before a person specified in the order and within a time specified therein, for observation, or

(b) remand an appellant to such custody as the judge directs for observation for a period not exceeding thirty days,

where, in his opinion, supported by the evidence or, where the appellant and the respondent consent, by the report in writing, of at least one duly qualified medical practitioner, there is reason to believe that

(d) the balance of the mind of the appellant is disturbed, where the appellant is a female person charged with an offence arising out of the death of her newly-born child.

(2) Notwithstanding subsection (1), a judge of the court of appeal may remand an appellant in accordance therewith

(a) for a period not exceeding thirty days without having heard the evidence or considered the report of a duly qualified medical practioner where compelling circumstances exists for so doing and where a medical practioner is not readily available to examine the accused and give evidence or submit a report; and

(b) for a period of more than thirty days but not exceeding sixty days where he is satisfied that observation for such a period is required in all the circumstances of the case and his opinion is supported by evidence or, where the appellant and the respondent consent, by the report in writing, of at least one duly qualified medical practitioner.

738.
(5) Notwithstanding subsection (1), the summary conviction court may, at any time before convicting a defendant or making an order against him or dismissing the information, as the case may be, when of the opinion, supported by the evidence, or, where the prosecutor and defendant consent, by the report in writing, of at least one duly qualified medical practioner, that there is reason to believe that the defendant is mentally ill, by order in writing,

(a) direct the defendant to attend, at a place or before a person specified in the order and within a time specified therein, for observation; or

(b) remand the defendant to such custody as the court directs for observation for a period not exceeding thirty days.

(6) Notwithstanding subsection (5), a summary conviction court may remand the defendant in accordance therewith

(a) for a period not exceeding thirty days without having heard the evidence or considered the report of a duly qualified medical practitioner where compelling circumstances exist for so doing and where a medical practitioner not readily available to examine the accused and give evidence or submit a report; and

(7) Where, as a result of observations made pursuant to an order issued under subsection (5), it appears to a summary conviction court that there is sufficient reason to doubt that a defendant is, on account of insanity, capable of conducting his defence, the summary conviction court shall direct that an issue be tried as to whether the defendant is then, on account of insanity, unfit to stand his trial.

(8) Where a summary conviction court directs the trial of an issue under subsection (7), it shall proceed in accordance with section 543 in so far as that section my be applied.

The respondent argued before us that, in addition to being disentitled under section 45 of the Act, the applicant had failed to meet the requirements of section 25:

A claimant is not entitled to be paid initial benefit for any working day in a benefit period for which he fails to prove that he was either

(a) capable of and available for work and unable to obtain suitable employment on that day, or

(b) incapable of work by reason of prescribed illness, inquiry or quarantine on that day, and that he would be otherwise available for work.

In the respondent's argument the applicant failed to prove both requirements under subsection 25(b): that he was incapable of work by reason of prescribed illness and that he would otherwise have been available for work.

Subsection 47(1) of the Regulations sets down the procedure for proving illness as follows:

A claimant who, pursuant to paragraph 25(b) of the Act alleges that he is incapable of work by reason of illness, injury or quarantine, shall at such time as the Commission may request and at his own expense furnish a certificate completed by a medical doctor or other person acceptable to the Commission, supplying such information as the Commission may require with respect to the nature of the illness, injury or quarantine, the probable duration of the incapacity, and any other circumstance relating thereto.

The applicant, in fact, submitted two medical certificates under this requirement, one from a physician at the Royal Ottawa Hospital, another from a physician at Penetanguishene.

Moreover, as the counsel for the applicant rightly pointed out, the notice of refusal by the Commission of the applicant's claim for benefit on June 1, 1984, was specifically limited as follows:

On the information which has been presented in connection with your claim for benefit you are not entitled to receive benefit under Section 45(a) of the Unemployment Insurance Act and Regulation 55 as you are an inmate of an institution. Payment of benefit is suspended from 22 May 1984 for so long as you are an inmate.

The applicant's running afoul of subsection 45(a) was the sole reason given by the Commission for the disentitlement and was the sole basis on which the matter was considered by both the Board of Referees and the Umpire. It is not open to us, on a section 28 application, now to enlarge the issue under consideration.

Since the decision by the Umpire in the instant case, Mr. Justice Joyal, acting as Umpire in Painchaud v. Canada Employment & Immigration Commission, No. A-729-85, decided June 11, 1985, CUB 10689 (presently under appeal to this Court), reached the opposite conclusion on material facts that were identical except that the remand was initiated by a justice at a preliminary inquiry rather than by a summary conviction court. Joyal J. concluded (at pp. 6-7):

Je reviens au texte du paragraphe 45(a) et aux circonstances qui ont entouré l'hébergement du prestataire à l'institut de psychiatrie. L'expression dont se sert le texte français est "détenu", ce qui implique une contrainte exercée sur la personne. La jurisprudence ne nous aide pas beaucoup à en connaître la portée.

Le texte anglais se sert du mot "inmate". La jurisprudence anglaise nous indique clairement que le sens de ce mot dépend du contexte dans lequel il se trouve. Sans doute "inmate" veut dire un détenu dans une prison ou un pénitencier ou autre "detention centre". "Inmate" peut aussi décrire un commis dans l'atelier de son patron, ou un voyageur dans une chambre d'hôtel, ou un étudiant qui fréquente in internat.

J'en conclus que le mot "inmate" dans son étymologie ou dans le sens juridique qu'on aurait pu lui attribuer n'a pas tout à fait le sens de "détenu". Dans le dictionnaire Robert, on parle d'un détenu comme étant une personne "maintenue en captivité", d'un "inculpé arbitrairement détenu", ce qui implique une contrainte imposée par une autorité quelconque.

Le sens étymologique du mot "détenu" ou "inmate" n'éclaircit pas la situation. L'interprétation du texte doit donc se fonder sur l'expression "prison" ou un "établissement semblable". Nous y trouvons l'application d'une règle fondamentale d'interprétation, soit la règle de "ejusdem generis", ce qui provoque un tribunal à limiter la portée des mots "institution semblable" au genre de mot "prison".

Pourrait-on prétendre que l'institut de psychiatrie en question est une "institution semblable" à une prison? L'acte d'incorporation ou la charte de cette institution ne l'indique pas. Les buts et les attributions de l'institut n'ont rien de pénitentiel. De plus, d'après le dossier, la remise du prestataire entre les mains des autorités de l'institut n'est pas un moyen de sanction ou un geste punitif qu'on inflige à un détenu de prison. L'expérience du prestataire est en raison d'un diagnostique préliminaire indiquant clairement que le prestataire a besoin d'examens psychiatriques ou de traitements. Il est détenu dans le sens que son état de santé impose des restrictions sérieuses à sa liberté mais ces restrictions lui sont imposées pour son propre bien. Il est détenu dans un sens, mais non au "détenu de prison" au sens de l'article 45. Il n'est pas plus un "détenu" que le serait une personne détenue dans un hôpital en raison de blessures graves.

The single question as to the application of subsection 45(a) of the Act to a claimant remanded for psychiatric examination, therefore, has not only divided the Board of Referees in this case, but has been decided in opposite ways by the only two umpires to consider it. It also divides this Court. Like so much else in administrative law, it is a matter of statutory interpretation.

At various times Courts have opted for either a literal or a purposive approach to statutory construction. The now classic Hart-Fuller debate on law and morals in the pages of the Harvard Law Review ((1958). 71 Harv. L. Rev. 593-672) revolved in considerable part around whether words have a standard instance or core of settled meaning with a smaller penumbra of variable meaning to be resolved by reference to the larger context (Hart) or whether statutory words are all in interaction with one another in terms of the purpose and structure of the statute (Fuller). ¹

The proper approach appears now to have been resolved in Canada in favor of a contextual interpretation, which E.A. Driedger terms "the modern principle" of statutory construction, which he defines as follows (Construction of Statutes, 2nd ed., 1983, p. 87):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

It is this single principle of interpretation which this Court has previously described as "a words-in-total-context" approach: Lor-Wes Contracting v. M.N.R. (1985), 60 N.R. 321, 325. This new emphasis on context reflects the understanding of words expressed many years ago by Mr. Justice Holmes, Towne v. Eisner (1918), 245 U.S. 418, 425:

A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and context according to the circumstances and the time in which it was used.

A word in a statute is a cell within an organism, an incomplete structure within a more complete one, and can be fully understood only in relation to the whole of which it is a constituent part.

As the umpires in the instant case and in the Painchaud case, supra, have made clear, the statutory words in question here, "an inmate of any prison or similar institution," taken by themselves, do not resolve the problem. 'An inmate' can describe a resident of any institution. The word 'prison', which has a more precise meaning, is somewhat extended by being linked with 'similar institution'. The sense of the phrase is something like this; an inmate of any prison or similar institution is a person who is detained in a place of confinement.

While the Mental Health Centre at Penetanguishene is admittedly a hospital, it is also clear on the record that it is an institution with a maximum security facility. ² It is common ground that the applicant was in custody during the whole of his time in Penetanguishene, and the record shows that he was held for at least part of his time there in the maximum security section. To the extent that a purely verbal analysis is helpful, the applicant may therefore be said to have been confined for the eight-week period in question in a prison-like place of confinement.

The purpose of section 45, as part of a legislative program of social insurance based on the payment of benefits to contributors who are available for work but unable to obtain suitable employment, is apparently to disentitle claimants who are not available for work because they are in prison or outside the country:

Sec. 45. Except under section 31, a claimant is not entitled to receive benefit for any period during which

(a) he is an inmate of any prison or similar institution; or

(b) he is not in Canada,

except as may otherwise be prescribed.

This is made clear by section 55 of the Regulations which exempts from disentitlement those inmates who are available for work:

Sec. 55. A claimant who is an inmate of a prison or similar institution and has been granted parole, partial parole or temporary absence, or a certificate of availability for the purpose of seeking and accepting employment in the community, is not disentitled from receiving benefit by reason only of section 45 of the Act.

The convoluted argument which counsel for the applicant tried to base on subsection 56(1) of the Regulations fails in that the exemption from disentitlement there specified is subject to the whole of Part II of the Act, including the availability-for-work requirement. Section 45 may therefore be seen as creating a conclusive presumption of disentitlement for certain categories of claimants who are not available for work as required by section 25 of the Act, including those who are inmates in any prison or similar institution.

This might be thought to be sufficient to resolve the case, but the purpose of the Act, as revealed by section 25, supra, provides also for a general exemption from the availability-for-work requirement for those incapable of work by reason of "prescribed illness".

By paragraph 2(u)(iii) of the Act, "prescribed" means "prescribed by regulation." Subsection 47(6) of the Regulations provides simply that "illness for the purposes of ... 25(b) ... of the Act is any illness ... that renders a claimant incapable of performing the function of his regular or usual employment or other suitable employment."

The applicant argues that while at Penetanguishene he was a patient under treatment in a hospital and that he was unavailable for work, not because he was an inmate in a prison or similar institution but solely because of illness that rendered him incapable of performing the functions of suitable employment. On this hypothesis his detention was for a therapeutic or assessment purpose and was not motivated by punitive or custodial concerns. It is supported by the admitted facts that the applicant had not been tried for or convicted of any offence, that he had not even been refused bail at either a show cause or bail review hearing, and that when he was allowed to leave Penetanguishene prior to the date of his trial he was not held in pre-trial custody.

The juxtaposition of the disentitlement from benefit in subsection 45(a) with the exemption from disentitlement for illness in subsection 25(b) creates an uncertainty as to the purpose of the Act in relation to these facts which makes it necessary to have recourse to the purpose of the provisions of the Criminal Code, supra, under which the applicant was examined at Penetanguishene.

The various procedures in sections 465, 543, 608.2 and 738 of the Criminal Code, supra, are each intended to determine whether a defendant/accused is fit to stand trial where there is sufficient reason to doubt that he is, on account of insanity, capable of conducting his defence. Subsection 738(6), for example, under which the remand here was made, is merely an expansion of subsection 738(5) ("may remand the defendant in accordance therewith"). Where the trial of an issue is required, subsection 738(8) provides that "it shall proceed in accordance with section 543 in so far as that section may be applied."

The presupposition of the applicant's contention is a dichotomy between what one might call the security and the justice goals of criminal law, and the identification of the latter with the personal welfare of accused persons. On this hypothesis, if the purpose of the applicant's psychiatric assessment were not custodial, it must needs be for the personal advantage of the applicant in relation either to his health or to the fairness of his trial. (In fact, counsel for the applicant made the argument only in terms of health).

The fallacy of this contention is that even the justice/fairness goal of the criminal justice system, let alone any putative therapeutic goal, is not exclusively for the benefit of accused persons. The Criminal Code provisions relating to fitness to stand trial are based on the common law ban against trials in absentia: Foote, "A Comment on Pre-Trial Commitment of Criminal Defendants" (1960), 108 U. Penn. L. Rev. 832. Schiffer, Mental Disorder and the Criminal Trial Process, 1978, at p. 51, finds that "the idea that persons of unsound mind should not be made to stand trial is one rooted in age-old concepts of fair play and fundamental justice," dating back to Biblical teachings. Lord Reading C.J. stated its essence in Rex v. Lee Kun, [1916] 1 K.B. 337, 371:

The presence of the accused means not merely that he must be physically in attendance, but also that he must be capable of understanding the nature of the proceedings.

Three of the four sections in the Code authorizing psychiatric assessment may be triggered by the belief that the accused is mentally ill. Section 543 speaks rather of "insanity", but the insanity associated with unfitness to stand trial is not of the same kind and extent as section 16 insanity, which codifies the rule in M'Naghten's Case: R. v. Budic (1977), 35 C.C.C. (2d) 272. The Report of the Canadian Committee on Corrections (Ouimet Report), 1969, at p. 226, puts the considerations in play this way:

[T]he criteria used to determine fitness to stand trial generally involve the answers to the following questions: does the accused have the capacity to understand the nature and object of the proceedings against him?; is he capable of comprehending his own condition in reference to such proceedings?; is he capable of making a rational defence?

No doubt the principal reason for maintaining the fitness rule is fairness, through protecting the accused's right to defend himself. But fairness is not a benefit only to the accused. It is also a benefit to the State, which must attempt to ensure that justice is seen to be done. Consequently, the issue of fitness is not left to be pleaded only by accused persons, who may be chary of raising it, given the possibly prolonged deprivation of liberty they may face if found unfit. The Code provides that it may also be raised by the Crown or by the Court, and once it appears that there is reason to doubt the accused's fitness, the issue must be resolved. It cannot be the subject of an admission by the accused or his counsel: R. v. Levionnois (1956), 114 C.C.C. 266. Veteran Crown prosecutor Henry Bull, "Fitness to Stand Trial" (1966), 8 Crim. L.Q. 290, 292, asserts that "the issue must be tried even over the objection of the defence because the principle is that an insane person must not be tried." Most important, in the words of Carrothers J.A. for the British Columbia Court of Appeal in Reg. v. Roberts (1975), 24 C.C.C. (2d) 539, 546 "the hearing on the fitness issue ... is strictly an inquiry on behalf of the Queen to determine the status of a subject and not a trial involving adversaries ..." As an inquiry on behalf of the Queen, it may also benefit the accused, but it is conducted primarily for a public purpose.

In the instant case the record shows that the applicant was confined in Penetanguishene for examination and "that he would be released on July 17, '84 depending on the result of the assessment." There is nothing in the record as to the result of the assessment, but clearly, since his trial was allowed to proceed to conviction, he was found to be mentally competent and so did not need to be held in custody in the interval between his release from Penetanguishene and his trial. Otherwise, there would have been the trial of an issue under subsection 738(8), conducted in accordance with section 543.

The public interest in the issue of fitness to stand trial becomes even more apparent when one regards the full process. Building on section 543, section 545 provides that, where an accused is found to be insane, he may not be released unless it is not only "in the best interest of the accused" but also "not contrary to the interest of the public." One may conclude, in other words, that throughout the whole process of determination of fitness, culminating in potential release, any action taken must be "not contrary to the interest of the public."

In my view the conclusion is inevitable: the purpose of the relevant provisions of the Criminal Code is not a therapeutic one in relation to the accused's health by rather a fully public justice purpose, utilizing both compulsion and custody; according to this purpose the applicant was held in custody in a maximum security institution for compulsory psychiatric examination following a criminal charge; after eight weeks of assessment, he was released until trial because he was found fit to stand trial, but during this lengthy period of assessment he must be regarded as having been an inmate in a prison or similar institution.

It must be admitted that the majority members of the Board of Referees were in error in believing that, while at Penetanguishene, the applicant was in custody pending trial, although the mistake may reflect simply their lay misunderstanding of legal terminology. However, the five factual conclusions which serve as what they describe as "the basis of the majority conclusion" are unexceptionable, as is in my view their legal conclusion as to the application of subsection 45(a) of the ACT to these facts, for the reasons I have given. While the reasons for decision of the learned Umpire do not advance the understanding of the precise issue in the case, I am unable to identify any error of law in his brief personal analysis. His underlining of passages from quotations includes the description of prison from Stroud's Judicial Dictionary as "every place of confinement under legal process," a description which I find appropriate in the present case.

In fine, the remand to Penetanguishene for observation was not primarily for the applicant's own benefit even in relation to a fair trial, still less for his personal benefit in relation to his health, as his argument alleges. He was confined under custody without regard to his own wishes. He was therefore an inmate in a prison or similar institution and disentitled to unemployment insurance benefits under subsection 45(a), unless such legislation can be found to be contrary to the Charter of Rights and Freedoms.

The applicant raises Charter arguments under subsections 11(d) and 15(1):

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

In my view, neither contention has any application to these facts.

The applicant says that to deprive him of benefits without a bail hearing or a trial violates the presumption of innocence as guaranteed by section 11(d). But the disentitlement under the unemployment insurance legislation cannot be considered a punitive measure in violation of the applicant's presumption of innocence. Indeed, by paragraph 18(2)(b) the Act provides for the extension of the qualifying period for benefits by the aggregate of any weeks lost through being "confined in any gaol, penitentiary or similar institution," a provision reinforced by the recent decision of this Court in Garland v. Canada Employment and Immigration Commission, No. A-1132-84, decided November 20, 1985, unreported.

The invocation of subsection 15(1) rests on the argument that it would be discriminatory not to give the applicant in Ontario the benefit of as favorable a Mental Health Act as that in Alberta, which specifies in subsection 1(k) that a person remanded to a mental health facility is a patient. But this is a definition for purposes of that provincial legislation and cannot determine the interpretation of a different term, "inmate of any prison or similar institution" in different legislation with a different purpose. Even if the applicant in Ontario had had the benefit of the Alberta definition of patient, his situation would not have been improved. It is, in all jurisdictions, an irrelevant consideration, because the purpose of the procedure is not personal health but the public policy of fair trial.

Since the learned umpire made no error of law in his interpretation of the relevant statutory provisions and correctly applied the law to the facts of the case before him, I would therefore dismiss the application.

(Mark R. MacGuigan)
J.F.C.C.

¹ The case which underlay this part of the Hart-Fuller debate was McBoyle v. U.S. (1931), 283 U.S. 25, which interpreted the National Motor Vehicle Theft Act (which criminalized the transport in interstate or foreign commerce of a motor vehicle, knowing it to be stolen) not to apply to a person who transported an airplane with the requisite intent. The statute provided that "the term 'motor vehicle' shall include an automobile, automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed for running on rails." Holmes J. wrote for the Court (at p. 27):

When a rule of conduct is laid down in words that evoke in the common mind only the picture of vehicles moving on land, the statute should not extend to aircraft, simply because it may seem to us that a similar policy applies, or upon speculation that, if the legislature had thought of it, very likely broader words would have been used.

A full explanation of the issues in this case is found in a seminal article by Professor Harry Jones, "Statutory Doubts and Legislative Intention" (1940), 40 Colum. L. Rev. 957. Professor Jones concludes (at p. 973-4):

It must be kept in mind that so-called interpretation, on issues which were wholly beyond the foresight of the draftsmen of a statute, is, itself, legislative in character. The substantial issue is whether the inevitable judicial legislation is to forward the policy of the legislative authority or to retard its fulfillment ... As a delegate, the judge should guide his action by the policy or purpose which the legislative majority has deliberately adopted, and his need for understanding of that policy requires that he discover the conclusions of fact and the judgments of value which seemed compelling to the legislators. As a legislator, the judge must have sufficient comprehension of the conditions and activities which his interstitial legislation will affect to enable him to make effective implementing rules, in the form of the particular decisions handed down in the "interpretation" of the act.

Professor Jones dealt with related issues in "The Plain Meaning Rule and Extrinsic Aids in the Interpretation, of Federal Statutes" (1939), 25 Wash. U.L.Q. 2 and "Extrinsic Aids in the Federal Courts" (1940), 25 Iowa L. Rev. 737.

² In my view the change in the wording of section 45 from the former words, "an inmate of any prison or penitentiary or an institution supported wholly or partly out of public funds," to the present text, "an inmate of any prison or similar institution," cannot determine the result of this case. Of course, an inmate of a hospital as such would have been clearly covered previously and is not now, but the fact that a claimant is an inmate in a hospital cannot exclude his from the purview of section 45 if the institution of which he is an inmate can also be said to be "a prison or similar institution." In other words, the phrase to be interpreted is not "an inmate in a hospital" but "an inmate in a prison or similar institution." There is no dichotomy between the two phrases that makes them mutually exclusive, and it is sufficient for the application of section 45 that the institution be "a prison or similar institution," regardless of whatever else it may also be. As I go on to explain, only an analysis of the relevant Criminal Code provisions under which the applicant was held in Penetanguishene will ultimately clarify what kind of inmate he was.

2011-01-10