A-812-81
Robert Maclntyre (Appellant)
v.
The Queen (Respondent)
Court of Appeal, Thurlow C.J., Kelly and Cowan
D.JJ.—Toronto, June 16, 1982; Ottawa, July 19,
1982.
Parole — Application on a special case for declaration that
appellant entitled to release from prison according to his
calculations — Appellant disputes calculations of unexpired
terms of imprisonment — Appellant sentenced several times
prior to escape in 1976 — After apprehension, sentenced to
nine years consecutive to any sentence then being served for
offences committed while at large — Subsequently, sentenced
to four months for being unlawfully at large — Appellant
contends he is entitled to maximum of one-third of total
amount of sentence which should be taken to be the sum of all
sentences from date first sentenced pursuant to s. 14 of Parole
Act — Respondent contends s. 137. of Criminal Code provides
for imposition of new sentence on escapee which blends with
remanet of sentence inmate serving when he escaped and that
blend constitutes single sentence — Trial Division dismissed
action — Court of Appeal allowed appeal — Penitentiary Act,
R.S.C. 1970, c. P-6, ss. 22(1), 24 (as rep. by S.C. 1976-77, c.
53, s. 41) — Parole Act, R.S.C. 1970, c. P-2, s. 14, as rep. by
R.S.C. 1970 (1st Supp.), c. 31, s. 1; as am. by S.C. 1977-78, c.
22, s. 19 — Criminal Code, R.S.C. 1970, c. C-34, s. 137, as
rep. by S.C. 1972, c. 13, s. 9; 1976-77, c. 53, s. 6.
The appellant disputes the calculations of the unexpired
terms of his imprisonment. After being sentenced, paroled and
recommitted, the appellant was sentenced in 1973 to two years
consecutive to the unexpired portion of any term for which
parole was granted. The appellant escaped in 1976 and after he
was apprehended was sentenced to nine years consecutive to
any sentence then being served. He was later sentenced to four
months for being unlawfully at large. Section 24.2 of the
Penitentiary Act ensures that an inmate would not earn remis
sion greater than one-third of the sentence he is serving.
Section 14 of the Parole Act indicates that all sentences
imposed are deemed to constitute one sentence for the term of
the total of the separate sentences imposed on a person. The
appellant contended that for the purposes of remission, his
sentence must be taken as beginning on July 6, 1971 when he
was first sentenced and to include all subsequent sentences; as a
result, the maximum remission to which he was entitled should
be one-third of the total amount. Section 137 of the Criminal
Code provides that a person who escapes imprisonment shall,
after serving any punishment to which he is sentenced for that
escape, serve the remaining portion of the term that he was
serving prior to his escape, including statutory remission, but
not including earned remission. The respondent contends that
section 137 provides for the imposition of a new sentence on an
escapee which blends with the remanet of the sentence the
inmate was serving when he escaped and that blend constitutes
a single sentence by the operation of section 137. The question
is what is the term to which the appellant has been sentenced
upon which remission is to be based.
Held, the appeal is allowed. The term "the sentence he is
then serving" in section 24.2 of the Penitentiary Act means a
"sentence consisting of a term of imprisonment commencing on
the earliest day on which any of those sentences of imprison
ment commences and ending on the expiration of the last to
expire of such terms of imprisonment" pursuant to section 14 of
the Parole Act. Section 137 of the Criminal Code does not
operate to impose a new sentence; it deals with the question of
the order in which sentences are to be served. Section 14 of the
Parole Act is specific legislation in the sense that it deals with
calculation of the term of imprisonment resulting from two or
more sentences and it results in creating a single sentence. The
appellant is thus deemed to have been sentenced on July 6,
1971, the date of his first sentence. To treat the single sentence
created by subsection 14(1) of the Parole Act as the sentence
the appellant was serving within the meaning of subsection
137(1) of the Criminal Code results in causing loss of statutory
remission on a term of imprisonment which at the material
time had not been imposed and which was imposed for offences
which at the material time had not yet been committed.
CASE JUDICIALLY CONSIDERED
NOT FOLLOWED:
R. v. Sowa (No. 2), [1980] 2 W.W.R. 83 (Sask. C.A.).
COUNSEL:
F. J. O'Connor for appellant.
R. P. Hynes for respondent.
SOLICITORS:
O'Connor, Ecclestone, Kingston, for appel
lant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: I agree with the reasoning and
with the conclusion of Mr. Justice Cowan whose
reasons for judgment I have had an opportunity to
read and consider. As we are differing with the
view of the learned Trial Judge [[1982] 2 F.C.
310], and are not applying that part of the reason-
ing of the Sow& case on which he relied, I wish to
add some comments of my own.
The Sowa case itself is not, in my view, precisely
in point. The issue in that case was one as to the
periods or terms of imprisonment on which remis
sion under the Penitentiary Act, R.S.C. 1970, c.
P-6, could be earned. Here that is not a problem.
What is in issue is the meaning of an overall
limitation to "one-third of the sentence he is then
serving" imposed by section 24.2 2 of the Peniten
tiary Act on the gross amount of remission, includ
ing both statutory and earned remission, obtain
able by the formulae under the old and the new
systems by an inmate who was serving his sentence
or sentences when the new system came into
effect.
The appellant had been sentenced on three occa
sions prior to his being sentenced on September 14,
1976 to four months' imprisonment for his escape.
Subsection 14(1) 3 of the Parole Act, R.S.C. 1970,
' R. v. Sowa (No. 2), [1980] 2 W.W.R. 83 (Sask. C.A.).
2 24.2 An inmate who has been credited with statutory
remission is not entitled to earned remission pursuant to subsec
tion 24(1) beyond the date when the aggregate of
(a) the maximum number of days of statutory remission with
which he was at any time credited under this Act and under
the Prisons and Reformatories Act in respect of the term he
is then serving,
(b) the number of days of any earned remission standing to
his credit that accrued before the coming into force of this
section, and
(c) the maximum number of days of earned remission with
which he was at any time credited pursuant to subsection
24(1)
equals one-third of the sentence he is then serving.
3 14. (1) Where, either before, on or after the 25th day of
March 1970,
(a) a person is sentenced to two or more terms of imprison
ment, or
(b) an inmate who is in confinement is sentenced to an
additional term or terms of imprisonment,
the terms of imprisonment to which he has been sentenced,
including in a case described in paragraph (b) any term or
terms that resulted in his being in confinement, shall, for all
purposes of this Act, the Criminal Code, the Penitentiary Act
and the Prisons and Reformatories Act, be deemed to consti
tute one sentence consisting of a term of imprisonment com
mencing on the earliest day on which any of those sentences of
imprisonment commences and ending on the expiration of the
last to expire of such terms of imprisonment.
c. P-2, had thus had two occasions to operate. The
first was when he was sentenced on June 14, 1973
to terms totalling two years. This, and the remnant
of his unexpired four-year term, were, for the
purposes of the Parole Act and the Penitentiary
Act, deemed to be a single sentence of six years
commencing July 6, 1971, the date when the four-
year term was imposed.
When, on April 13, 1976, the appellant was
sentenced to further terms totalling nine years, the
subsection operated again to deem the four-, two-
and nine-year terms to be, for the purposes of the
Parole Act and the Penitentiary Act, a single
sentence also commencing July 6, 1971, the date
when the four-year term was imposed.
That was the situation when the appellant was
sentenced to serve the four months term for escap
ing. When that sentence was imposed, subsection
137(1) of the Criminal Code 4 , R.S.C. 1970, c.
C-34, applied to prescribe the order in which that
sentence and the sentence the appellant was serv
ing when he escaped should be served and to
specify how much of the sentence the appellant
was serving at the time of his escape remained to
be served. In so doing, the subsection deprived the
appellant of statutory remission but not earned
remission and it declared him entitled to credit for
time in custody following his re-arrest up to the
time of sentencing for the escape.
The subsection did not, in my opinion, impose a
new sentence in respect of the portion of the
sentence remaining to be served. The subsection
referred to "the portion of the term of imprison
ment that he was serving ..." and while it
deprived the appellant of statutory remission in
4 137. (I) Except where otherwise provided by the Parole
Act, a person who escapes while undergoing imprisonment
shall, after undergoing any punishment to which he is sen
tenced for that escape, serve the portion of the term of impris
onment that he was serving, including statutory remission but
not including earned remission, at the time of his escape that he
had not then served minus any time that he spent in custody
between the date on which he was apprehended after his escape
and the date on which he was sentenced for that escape.
respect of that term, it added nothing to the term
itself. On the contrary, it maintained the appel
lant's rights to credit for earned remission and for
time spent in custody prior to sentencing for the
escape. Moreover, the subsection did not purport
to change or affect the operation of subsection
14(1) of the Parole Act which had already estab
lished July 6, 1971 as the date of commencement
of the single term to which he was deemed to have
been sentenced.
I do not think this view is affected by what was
referred to by the learned Trial Judge as a hiatus.
Subsection 137(2) 5 of the Criminal Code declared
section 14 of the Parole Act to be applicable in
determining the sentence which the appellant was
serving at the time of his escape. That, as I see it,
means that the four- and two-year terms to which
the appellant had been sentenced and which he
was serving at the time of his escape, having been
deemed by subsection 14(1) of the Parole Act to
be a single sentence, constituted together the sen
tence he was serving at the time of his escape. The
single sentence created by subsection 14(1) of the
Parole Act following the imposition of the nine-
year term, in my view, was not what is referred to
in subsection 137(1) of the Criminal Code as the
sentence the appellant was serving when he
escaped. Apart from not being in fact the sentence
the appellant was serving when he escaped, to treat
it as the term referred to in subsection 137(1)
would have the bizarre effect of causing loss of
statutory remission on a term of imprisonment
which at the material time had not been imposed
and which when imposed was for offences which at
the material time had not yet been committed.
That however, in my view, does not affect or
change the commencement date of the sentence of
a single term deemed by subsection 14(1) to have
been imposed.
Under subsection 14(1) that commencement
date continued to be the commencement date of
the appellant's single sentence for the purposes of
the Parole Act and the Penitentiary Act and, in
5 137....
(2) For the purpose of subsection (1), section 14 of the
Parole Act applies in determining the term of imprisonment
that a person who escapes while undergoing imprisonment was
serving at the time of his escape.
my opinion, notwithstanding the requirement of
subsection 137(1) of the Criminal Code that the
serving of the remnant of the sentence the appel
lant was serving at the time of his escape be
postponed until he had undergone the punishment
for the escape, the sentence the appellant was
serving when section 24.2 of the Penitentiary Act
came into effect was for the purposes of that Act a
single sentence of 15 years and four months com
mencing July 6, 1971 which had been deemed by
subsection 14(1) of the Parole Act to have been
imposed when on September 14, 1976 the addi
tional term of four months for escape was imposed
at a time when he was already serving a term of
fifteen years to which, under subsection 14(1), he
was deemed to have been sentenced on July 6,
1971.
I would allow the appeal and dispose of the
matter as proposed by Mr. Justice Cowan.
* * *
The following are the reasons for judgment
rendered in English by
COWAN D.J.: This is an appeal by the appellant,
the plaintiff in the Trial Division, from a judgment
of the Trial Division on a special case formulated
for the opinion of the Court, pursuant to Rule 475.
The special case is as follows:
STATEMENT OF FACTS
1. The Plaintiff was sentenced on July 6th, 1971, to four years
imprisonment.
2. The Plaintiff was paroled on November 6th, 1972. He was
recommitted on a suspension warrant March 5th, 1973.
3. The Plaintiffs parole was forfeited on June 14th, 1973.
4. The Plaintiff was sentenced on June 14th, 1973, to a number
of terms which totalled two years consecutive to the unexpired
portion of any term for which parole was granted.
5. The Plaintiff was unlawfully at large for 31 days in January
and February, 1976. The Plaintiff, on April 13th, 1976, was
sentenced to a total term of nine years consecutive to any
sentence then being served.
6. The Plaintiff was, on September 14th, 1976, sentenced to
four months in Kingston Penitentiary as a result of a conviction
for being unlawfully at large pursuant to Section 133 1(b) of
the Criminal Code.
7. The question for adjudication proposed by and concurred in
by both parties is as follows:
Does the term in Section 24.2 of the Penitentiary Act,
namely "The sentence he was then serving", mean a "Sentence
consisting of a term of imprisonment commencing on the
earliest day on which any of those sentences of imprisonment
(to which he was subject) commenced and ending on the
expiration of the last to expire of such terms of imprisonment",
pursuant to Section 14(1) of the Parole Act?
8. If the Court shall be of opinion in the positive, a declaratory
order is to be made that the Applicant is entitled to earned
remission up to one-third of the aggregate calculated on that
basis.
9. If the Court shall be of opinion in a negative, then the
Applicant is not entitled to earn any earned remission after
December 1st, 1979, and his release date is to be calculated
accordingly.
The learned Trial Judge was of the opinion that
the question posed in paragraph 7 of the special
case should be answered in the negative and that
the remission of the plaintiff's sentence should be
calculated on the basis outlined in paragraph 9 of
the special case. An order to that effect was there
upon granted.
At all relevant times prior to July 1, 1978, there
were two types of remission. The first type was
statutory remission, by which one-quarter of the
period for which a person had been sentenced or
committed was credited to him upon his being
received into a penitentiary, such credit being
treated as time off subject to good conduct. Statu
tory remission was subject to forfeiture to the
extent and in circumstances prescribed. The
second type of remission was earned remission
which might be credited to an inmate to the extent
of three days' remission of his sentence in respect
of each calendar month during which he applied
himself industriously, in accordance with pre
scribed rules, to the programme of the penitentiary
in which he was imprisoned. The maximum length
of the combined remission would amount to
approximately one-third of the period for which
the inmate had been sentenced or committed.
Provision for such remission was made in the
Penitentiary Act, R.S.C. 1970, c. P-6, ss. 22-24.
By the Criminal Law Amendment Act, 1977,
S.C. 1976-77, c. 53, s. 41, in force on and from
July 1, 1978, the relevant sections of the Peniten
tiary Act were repealed and the following sections
were substituted:
24, 24.1 and 24.2.
In effect, statutory remission was abolished and
replaced by earned remission at the higher max
imum rate of fifteen days of remission of 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 inmate
had applied himself industriously, as determined
by prescribed rules, to the programme of the peni
tentiary in which he was imprisoned.
Section 24.2 provides as follows:
24.2 An inmate who has been credited with statutory remis
sion is not entitled to earned remission pursuant to subsection
24(1) beyond the date when the aggregate of
(a) the maximum number of days of statutory remission with
which he was at any time credited under this Act and under
the Prisons and Reformatories Act in respect of the term he
is then serving,
(b) the number of days of any earned remission standing to
his credit that accrued before the coming into force of this
section, and
(c) the maximum number of days of earned remission with
which he was at any time credited pursuant to subsection
24(1)
equals one-third of the sentence he is then serving.
The appellant is an inmate who had been credit
ed with statutory remission prior to July 1, 1978,
and the effect of the section is that he is not
entitled to earned remission pursuant to subsection
24(1) beyond the date when the maximum number
of days of statutory remission with which he was
at any time credited under the Penitentiary Act
and under the Prisons and Reformatories Act,
R.S.C. 1970, c. P-21, in respect of the term he is
serving, the number of days of any earned remis
sion standing to his credit that accrued before the
coming into force of the section, i.e. July 1, 1978,
and the maximum number of days of earned
remission with which he was at any time credited,
pursuant to subsection 24(1) equals one-third of
the sentence he is then serving.
In order to answer the question posed in the
special case it becomes necessary to determine the
length of the sentence the plaintiff is serving at the
time when the question is posed.
Section 14 of the Parole Act, as re-enacted by
R.S.C. 1970 (1st Supp.), c. 31, s. 1, reads:
14. (1) Where, either before, on or after the 25th day of
March 1970,
(a) a person is sentenced to two or more terms of imprison
ment, or
(b) an inmate who is in confinement is sentenced to an
additional term or terms of imprisonment,
the terms of imprisonment to which he has been sentenced,
including in a case described in paragraph (b) any term or
terms that resulted in his being in confinement, shall, for all
purposes of this Act, the Penitentiary Act and the Prisons and
Reformatories Act, be deemed to constitute one sentence con
sisting of a term of imprisonment commencing on the earliest
day on which any of those sentences of imprisonment com
mences and ending on the expiration of the last to expire of
such terms of imprisonment.
(2) This section does not affect the time at which any
sentences that are deemed by subsection (I) to constitute one
sentence commence pursuant to subsection 649(1) of the
Criminal Code.
By the Miscellaneous Statute Law Amendment
Act, 1978, S.C. 1977-78, c. 22, s. 19, the words
"the Criminal Code" were inserted between the
words "for all purposes of this Act" and the words
"the Penitentiary Act and the Prisons and Refor
matories Act".
It is submitted on behalf of the appellant that
section 14 of the Parole Act applies in his case and
that, at the time of his last sentencing, i.e. Septem-
ber 14, 1976, the terms of imprisonment to which
he has been sentenced shall, for all purposes,
including the purposes of the Penitentiary Act, be
deemed to constitute one sentence consisting of a
term of imprisonment commencing on the earliest
day on which any of those sentences of imprison
ment commences, i.e. July 6, 1971, and ending on
the expiration of the last to expire of such terms of
imprisonment. The appellant's term of imprison
ment would, therefore, be the aggregate of the
terms of imprisonment to which he has been sen
tenced, i.e. on July 6, 1971, four years; on June 14,
1973, two years; on April 13, 1976, nine years and
on September 14, 1976, four months, for a total of
fifteen years and four months or 5,601 days.
Counsel for the appellant submits that this is the
sentence which the appellant is now serving for the
purposes of section 24.2 of the Penitentiary Act
and that the maximum remission to which the
appellant is entitled should be calculated upon the
length of that sentence, that is, one-third of 5,601
days, for the resultant maximum remission of
1,867 days. Counsel for the appellant conceded
that, after being sentenced on September 14, 1976,
the unexpired portion of the sentence he was then
serving was 3,702 days after deducting statutory
remission which the appellant forfeited from time
to time.
In dealing with these submissions the learned
Trial Judge said [at pages 315-316]:
Section 14 of the Parole Act is both sweeping in its language
and effect. It is general in its terms. One of the safest guides to
the interpretation of sweeping general provisions is that they
are not intended to apply without some limitation which inten
tion may be found in other provisions of the same statute or in
a different statute.
Put yet another way it is a cardinal rule of legal interpreta
tion that general provisions in the same statute or other statutes
are not to control or repeal special provisions in the same
statute or another statute. The special provisions are to be read
as excepted out of the general. That is the only way of
reconciling such Acts of Parliament.
Accepting that section 14 of the Parole Act is general it
would be subject to other legislation specific in its application.
Counsel for Her Majesty contends that such special legisla
tion exists in section 137 of the Criminal Code, R.S.C. 1970, c.
C-34, as in force as at October 14, 1977 which reads:
137. (1) Except where otherwise provided by the Parole
Act, a person who escapes while undergoing imprisonment
shall, after undergoing any punishment to which he is sen
tenced for that escape, serve the portion of the term of
imprisonment that he was serving, including statutory remis
sion but not including earned remission, at the time of his
escape that he had not then served minus any time that he
spent in custody between the date on which he was
apprehended after his escape and the date on which he was
sentenced for that escape.
(2) For the purpose of subsection (1), section 14 of the
Parole Act applies in determining the term of imprisonment
that a person who escapes while undergoing imprisonment
was serving at the time of his escape.
(3) A person who escapes while undergoing imprisonment
shall serve the term, if any, to which he is sentenced for the
escape and the additional term calculated in accordance with
subsection (1) in a penitentiary if the aggregate of such
terms is two years or more or, if the aggregate of such terms
is less than two years,
(a) in the prison from which the escape was made, or
(b) where the court, judge, justice or magistrate by whom
he is sentenced for escape so orders, notwithstanding the
Parole Act, in a penitentiary,
and where a person is convicted for an escape, he shall,
notwithstanding section 659, be sentenced accordingly.
(4) For the purposes of this section, "escape" means
breaking prison, escaping from lawful custody or, without
lawful excuse, being at large within Canada before the
expiration of a term of imprisonment to which a person has
been sentenced.
This very question was before the Saskatchewan Court of
Appeal in R. v. Sowa (No. 2) [1980] 2 W.W.R. 83. The
question before the Court was whether the penitentiary
authorities properly interpreted and applied section 137 of the
Criminal Code in force until October 15, 1977 (that is section
137 as is quoted immediately above).
The judgment of the Court was delivered by Culliton C.J.S.
Speaking of section 137 he said at page 87:
Under the foregoing section the sentence to be served by
an inmate who escapes is determined and served as follows:
(a) The sentence for escape must first be served;
(b) Following the sentence so imposed, he must serve the
term of imprisonment that he was serving at the time of
escape that had not been served, without allowance for
statutory remission;
(c) Credit is to be given in respect of such total sentence
for any time in custody between the inmate's apprehension
and his sentence for escape.
The learned Trial Judge found that the question
raised by the special case was the same as that
before the Saskatchewan Court of Appeal in R. v.
Sowa (No. 2), [1980] 2 W.W.R. 83, where the
judgment of the Court was delivered by Culliton
C.J.S. In that case Sowa, the appellant was, on 14
October, 1971, sentenced to a term of four years'
imprisonment. On 18 February, 1972, he was sen
tenced to a further term of seven years' imprison
ment to be served consecutively to the sentence
imposed on 14 October, 1971. On 26 September,
1972, he escaped custody and remained at large
until he was recaptured on 6 November, 1972. On
15 May, 1973, he was sentenced to six months'
imprisonment for that escape. The sentence
imposed for the escape was stated to be consecu
tive to the sentence he was then serving, but it was
agreed by all the parties that the sentence was to
be served first, to be followed by the remanet of
the term of imprisonment previously being served,
as required by section 137 of the Criminal Code.
On 20 August, 1973, the appellant was sen
tenced to a further term of four months on each of
three counts of using a forged document. These
sentences were concurrent to one another but con
secutive to the sentence he was then serving.
Following the appellant's conviction for theft
and allowing for the consecutive sentence imposed
on 20 August, 1973, penitentiary officials, after
giving effect to all statutory remissions and possi
ble earned remission, established a release date of
the appellant and a mandatory supervision date.
The appellant contended that the penitentiary
authorities had erred in three respects:
First, that they failed to credit him with statu
tory remission for the period of November 6, 1972,
to May 15, 1973, being the period in custody
following his apprehension for escape. He said that
this should have been credited to the remanet of
his sentence and thus earned for him the statutory
remission provided in subsection 22(1) of the Pen
itentiary Act;
Second, that the penitentiary authorities, con
trary to subsection 14(1) of the Parole Act, estab
lished the commencement date of the single sen
tence to be May 15, 1973, rather than October 14,
1971; and
Third, that the penitentiary authorities erred
both in the interpretation of section 137 of the
1970 Code and in applying that section, as it had
been repealed and replaced by a new section, S.C.
1976-77, c. 53, s. 6, which came into force on
October 15, 1977. The appellant contended that,
as a result of the foregoing errors alleged, the
penitentiary authorities had erred both in the
determination of his release date and of the date
upon which he was entitled to be released on
mandatory supervision.
Culliton C.J.S. dealt first with the third point
raised by the appellant and decided that section
137 of the Criminal Code which was in force at
the time of the appellant's conviction for escape
was the effective section governing the sentence
imposed for that escape. Section 137 was repealed
and replaced by a new section by the Criminal
Law Amendment Act, 1977, S.C. 1976-77, c. 53, s.
6, in force on and from 15 October, 1977, and one
effect of the new section was to enable a judge
sentencing a person for an escape committed while
undergoing imprisonment to require him to serve
the term of imprisonment to which he is sentenced
for the escape, either concurrently with the portion
of the term of imprisonment that he was serving at
the time of his escape that he had not served, or
consecutively with such term. Culliton C.J.S.
found that the new section had no retroactive or
retrospective application.
Culliton C.J.S. then considered whether the pen
itentiary authorities properly interpreted and
applied section 137 of the Criminal Code which
was in force until 15 October, 1977, and referring
to that section said, at pages 87-88:
Under the foregoing section the sentence to be served by an
inmate who escapes is determined and served as follows:
(a) The sentence for escape must first be served;
(b) Following the sentence so imposed, he must serve the
term of imprisonment that he was serving at the time of escape
that had not been served, without allowance for statutory
remission;
(c) Credit is to be given in respect of such total sentence for
any time in custody between the inmate's apprehension and his
sentence for escape.
Section 14(1) of the Parole Act, as re-enacted by R.S.C.
1970, c. 31 (1st Supp.), s. 1, is as follows:
"14.(1) Where, either before, on or after the 25th day of
March, 1970,
"(a) a person is sentenced to two or more terms of imprison
ment, or
"(b) an inmate who is in confinement is sentenced to an
additional term or terms of imprisonment,
"the terms of imprisonment to which he has been sentenced,
including in a case described in paragraph (b) any term or
terms that resulted in his being in confinement, shall for all
purposes of this Act, the Penitentiary Act and the Prisons and
Reformatories Act, be deemed to constitute one sentence con
sisting of a term of imprisonment commencing on the earliest
day on which any of those sentences of imprisonment com
mences and ending on the expiration of the last to expire of
such terms of imprisonment."
Clearly, the opening words of s. 14(1), "Where, either
before, on or after the 25th day of March 1970", indicate that
the section, including the amendment of 1977-78, has a retroac
tive effect in determining a single sentence for the purpose of
statutory remission.
The appellant contends that on the wording of s. 14(1) the
single sentence in his case must be computed as beginning on
14th November 1971, the date upon which he was first sen
tenced to imprisonment. If it were not for the wording of s. 137
as it stood in 1973 I would have been inclined to agree with
that position.
In my opinion, s. 137 of the Criminal Code as it existed in
1973 must be construed as imposing a new sentence, one which
commenced when the sentence for escape was imposed. This, I
think, is the logical conclusion that can be drawn from the
manner in which, the section sets out, the sentence imposed is
to be served and calculated.
Under s. 137, which came into force on 15th July 1972, upon
conviction for escape after that date, the inmate would forfeit
all statutory remission standing to his credit. In subs. (3) that
portion of the sentence consisting of the remanet, as determined
in accordance with subs. (1), is referred to as "the additional
term", clearly indicating that the sentence imposed for escape
plus such additional term constitutes a single sentence. That
being so, the penitentiary authorities properly decided that the
single sentence, after the conviction for escape, commenced on
15th May 1973.
The learned Trial Judge in the present case was
of the opinion that the decision in the Sowa case
(supra) was on all fours with the facts of the
present special case and could not be distinguished
therefrom. The learned Trial Judge, therefore,
accepted the submission of counsel for Her Majes
ty, relying upon the Sowa case; that a new sen
tence was imposed by the Court which sentenced
the appellant for the escape on September 14,
1976, and that, while a sentence of four months
was imposed for that offence, that four months'
sentence blended with the remanet of the sentence
the inmate was serving when he escaped and con
stituted a single sentence by the operation of sec
tion 137 of the Criminal Code and section 137
operated to create a blended, single sentence of
3,702 days, commencing September 14, 1976,
upon which remission is to be calculated.
The learned Trial Judge then stated [at pages
318-3191:
The effect of subsection 137(2) has caused me concern. By
subsection 137(2) of the Criminal Code, section 14 of the
Parole Act applies in determining the term of imprisonment
that a person who escapes while undergoing imprisonment "was
serving at the time of his escape". The subsection does not say
the term of imprisonment that the "escapee" was serving at the
time of his sentence for escape.
The plaintiff escaped on January 19, 1976. He was not
sentenced to nine years on conviction for offences committed
while he was unlawfully at large from January 19, 1976 to
February 18, 1976 until he was apprehended, tried and ulti
mately sentenced on April 13, 1976.
Thus there would appear to be a hiatus and the sentence of
nine years would be in a state of limbo were it not for the
operation of section 14 of the Parole Act which includes the
sentence of nine years constituting part of the sentence which
the plaintiff was serving and the new single sentence resulting
from the operation of section 137 in combining the sentence for
escape with the other sentence imposed before the imposition of
the escape sentence as one sentence ....
In my view, the apparent hiatus arises by reason
of the interpretation of section 137 of the Criminal
Code as creating a single sentence, which is a new
sentence and one which commences when the sen
tence for escape is imposed. In the case of the
present appellant, by applying subsection 14(1) of
the Parole Act, as required by subsection 137(2)
of the Code, one determines that the term of
imprisonment that the appellant, who escaped
while undergoing imprisonment, was serving at the
time of his escape was a term of six years com
mencing July 6, 1971.
Subsection 137(1) provided that the appellant,
who escaped while undergoing imprisonment,
should, after undergoing any punishment to which
he is sentenced for that escape, serve the portion of
the term of imprisonment that he was serving,
including statutory remission but not including
earned remission, at the time of his escape that he
had not then served, minus any time that he spent
in custody between the date on which he was
apprehended after his escape and the date on
which he was sentenced for that escape. The appel
lant was sentenced on September 14, 1976, to a
term of imprisonment for four months for the
escape. If, therefore, one accepts the view that, by
so sentencing the appellant, the judge imposed a
new sentence, that new sentence would consist of
six years and four months, and would commence
on September 14, 1976.
There is nothing in section 137 which can be
considered to include in that term of imprisonment
the nine years to which he was sentenced on April
13, 1976. Subsection 14(1) of the Parole Act does
not assist in adding the nine years as part of that
"new sentence" since subsection 137(2) of the
Code states that subsection 14(1) of the Parole
Act applies in determining the term of imprison
ment that a person who escapes while undergoing
imprisonment was serving at the time of his
escape.
When one considers the position of the appellant
when he walked into the courtroom on September
14, 1976, to be sentenced on conviction for his
escape, it is clear that he had previously been
sentenced on three earlier dates to four years, two
years and nine years respectively, to run consecu
tively in that order. These were three separate and
distinct sentences. Like everyone else, the appel-
lant was subject to the provisions of the Criminal
Code which deals with offences and the trial of
those charged with commission of offences, and
penalties, including terms of imprisonment, which
may be imposed upon those convicted of offences.
The appellant was also an inmate of a penitentiary
and, as such, was subject to the provisions of the
Parole Act, dealing with questions relating to
parole and release from imprisonment prior to the
expiration of his sentence, according to law, as a
result of remission. That Act deals with suspension
and revocation of parole, forfeiture of parole,
apprehension upon revocation or forfeiture of
parole and recommitment of an inmate by a
magistrate if any parole is revoked or forfeited.
The appellant, as an inmate, was also subject to
the provisions of the Penitentiary Act which deals
with the way in which terms of imprisonment are
to be served, and also deals with remission. Section
24.2 of that Act is the section which places the
maximum on the aggregate of statutory remission
and earned remission at "one-third of the sentence
he is then serving".
Section 14 of the Parole Act provided, on Sep-
tember 14, 1976, in the case of the appellant, prior
to his being sentenced for the escape, that the
terms of imprisonment to which he had been sen
tenced, namely, four years, two years and nine
years, should, for all purposes of the Parole Act,
the Penitentiary Act and the Prisons and Refor
matories Act, be deemed to constitute one sen
tence consisting of a term of imprisonment com
mencing on the earliest day on which any of those
sentences of imprisonment commences and ending
on the expiration of the last to expire of such terms
of imprisonment. There was no reference, at that
time, in subsection 14(1) to the Criminal Code.
The one sentence which was deemed by the
operation of subsection 14(1) to exist consisted of
a term of imprisonment commencing July 6, 1971,
being the earliest day on which any of the sen
tences of imprisonment commenced and ending on
the expiration of the last to expire of such terms of
imprisonment, i.e. at the expiration of fifteen
years, from July 6, 1971. The effect of subsection
14(1) of the Parole Act was that, while the sen-
tence of June 14, 1973, for two years and that of
April 13, 1976, for nine years, were separate and
distinct sentences they were, for the purposes of
the Acts named, i.e. the Parole Act, the Peniten
tiary Act and the Prisons and Reformatories Act,
deemed to constitute one sentence by combining
the respective terms of imprisonment as originally
imposed, with any earlier term or terms of impris
onment as originally imposed.
The Judge before whom the appellant appeared
on September 14, 1976, sentenced him to serve a
term of imprisonment of four months for the
escape. Subsection 137(1) provided that, in the
circumstances, the appellant should first undergo
the punishment to which he was sentenced for that
escape, namely, four months, and thereafter would
serve the portion of the term of imprisonment that
he was serving, including statutory remission but
not including earned remission, at the time of his
escape that he had not then served, minus any time
spent in custody between the date on which he was
apprehended after his escape and the date on
which he was sentenced for that escape. The only
sentence pronounced by that Judge is the sentence
of four months.
Culliton C.J.S., in Sowa, page 88, dealt with the
contention of the appellant in that case that, on the
wording of subsection 14(1) of the Parole Act, the
single sentence in his case should be computed as
beginning on the date when he was first sentenced
to imprisonment. He went on to state:
If it were not for the wording of s. 137 as it stood in 1973 I
would have been inclined to agree with that position.
The learned Judge then proceeded to interpret
section 137 of the Criminal Code as it existed in
1973, as imposing a new sentence—one which
commenced when the sentence for escape was
imposed. He relied upon the reference in subsec
tion (3) of section 137 to "the additional term"
and took this as clearly indicating that the sen
tence imposed for escape, plus such additional
term, constituted a single sentence.
Subsection 137(3), in my opinion, merely deals
with the place in which a person who escapes while
undergoing imprisonment shall serve the two terms
of imprisonment—one being that to which he is
sentenced for the escape and the other being the
period remaining to be served of terms of impris
onment previously imposed, as calculated in
accordance with subsection (1) of section 14. The
subsection refers to the "additional term calculat
ed in accordance with subsection (1)" and does not
refer to the additional term as being one "to which
he has been sentenced".
With all respect for the opinion of the Court in
the Sowa case, I cannot agree that section 137 of
the Criminal Code, as it existed in 1973, must be
construed as imposing a new sentence—one which
commenced when the sentence for escape was
imposed. I am unable to accept the proposition
that this is the logical conclusion that can be
drawn from the manner in which the section sets
out the sentence imposed is to be served and
calculated. In my opinion, the only effect of sub
section 137(1) was that a person who escapes
while undergoing imprisonment must first serve
the term of imprisonment to which he had been
sentenced for the escape and, thereafter, must
serve the portion remaining to be served of the
term of imprisonment that he was serving at the
time of his escape, with the adjustments referred
to in the subsection.
In my view, it is significant that in subsection
137(3) there is a clear distinction between the
term to which the inmate is "sentenced" for the
escape and the "additional term" which is referred
to as being calculated in accordance with subsec
tion (1). In my opinion, this supports the view that
the additional term refers merely to the period
remaining to be served of the terms of imprison
ment previously imposed by one or more sentences.
As indicated above, section 137 does not deal
with the term of imprisonment of nine years
imposed by the sentence pronounced on April 13,
1976. As I construe section 137 and apply it to the
case of the present appellant, the appellant, prior
to sentencing for the escape on September 14,
1976, had a portion remaining of the two earlier
terms of four years and two years and the nine-
year term imposed on April 13, 1976. Section 137
merely provided that after sentencing for the
escape the appellant was required to serve the term
of imprisonment of four months to which he was
sentenced for that escape before commencing to
serve the balance remaining of the term of impris-
onment consisting of six years, commencing July
6, 1971, which he was serving at the time of his
escape. The nine-year term of imprisonment to
which he was sentenced on April 13, 1976, was
expressed to be consecutive to the four-year and
the two-year terms and, when his service under the
combined four-year and two-year terms was sus
pended for four months, the nine-year term would
continue to be consecutive to the combined four-
year and two-year terms.
For the purposes of the Parole Act and the
Penitentiary Act, section 14 of the Parole Act
operated so that all the terms of imprisonment
were deemed to constitute one sentence, consisting
of a term of imprisonment commencing on the
earliest day on which any of those sentences of
imprisonment commenced, i.e. July 6, 1971, and
ending on the expiration of the last to expire of
such terms of imprisonment, i.e. at the expiration
of fifteen years and four months.
In my opinion, nothing turns on the amendment
of subsection 14(1), effective 12 April, 1978, by
the addition of a reference to "the Criminal
Code". Culliton C.J.S., was of the opinion that the
opening words of subsection 14(1) "Where, either
before, on or after the 25th day of March 1970"
indicated that the section, including the amend
ment of 1977-78, had a retroactive effect in deter
mining a single sentence for the purpose of statu
tory remission.
It is clear that the section, including the amend
ment of 1977-78, applies in the case of an inmate
sentenced before, on or after the 25th day of
March, 1970, if he is in confinement and is sen
tenced to an additional term or terms of imprison
ment. However, before the amendment of 1977-78,
it is clear that the section applied only for the
purposes of the Parole Act, the Penitentiary Act
and the Prisons and Reformatories Act. In 1976,
at the time of the sentencing for the escape, sub
section 14(1) of the Parole Act referred to the
three named Acts, not including the Criminal
Code and, in that form, cannot be taken as sup
porting the view that section 137 of the Code
should be construed as imposing a new sentence—
one which commenced when the sentence for
escape was imposed. In fact, as indicated by Culli-
ton C.J.S., it lends support to the opposite view
that the single sentence is constituted only by
subsection 14(1) of the Parole Act and that the
single sentence is one which commenced on the
earliest day on which any of those sentences of
imprisonment commenced, i.e. in the case of the
appellant, July 6, 1971.
The learned Trial Judge in the present case was
of the opinion that section 14 of the Parole Act is
general in its terms while section 137 of the
Criminal Code was a special Act, and that the
provisions of the general Act should yield to the
provisions of the special Act. In my opinion, sec
tion 137 of the Code is "special" only in the sense
that it deals with the case of a person who escapes
while undergoing imprisonment and who is sen
tenced for that escape to serve a term of
imprisonment.
In my view, the section deals with the question
whether the inmate is to serve first, the term of
imprisonment to which he is sentenced for the
escape, and thereafter any portion remaining of
terms of imprisonment earlier imposed. On the
other hand, section 14 of the Parole Act is specific
legislation in the sense that it deals with calcula
tion of a term of imprisonment resulting from two
or more sentences, such calculation being made for
the purposes of the Parole Act, the Penitentiary
Act and the Prisons and Reformatories Act. It is
the provision of section 24.2 of the Penitentiary
Act, referring to "one-third of the sentence he is
then serving" which is to be interpreted in the
present case and, in my opinion, section 14 of the
Parole Act applies.
As indicated above, the Criminal Law Amend
ment Act, 1977, S.C. 1976-77, c. 53, s. 6, in force
on and from 15 October, 1977, repealed the
former section 137 of the Code. In effect, it per
mits judges to treat convictions for an escape by a
person who has committed the offence while
undergoing imprisonment like any other convic
tion. Such a person is now to be sentenced to serve
any term of imprisonment to which he is sentenced
for the escape, either concurrently with the portion
of the term of imprisonment that he was serving at
the time of his escape that he has not served or he
may be ordered to serve such term of imprison
ment consecutively. The amendment has no
retroactive or retrospective effect but, as I con
strue it, it means that there is no longer, if in such
circumstances there ever was, a new sentence—
one which commences when the sentence for
escape is imposed. Whether the term of imprison
ment is to be served concurrently or consecutively,
the "earliest day on which any of those sentences
of imprisonment commences" remains the same
and section 14 of the Parole Act operates to deem
the terms of imprisonment to constitute one sen
tence, extended in time by the new term of impris
onment if it is to be served consecutively, or re
maining at the same length if the new term of
imprisonment is to be served concurrently.
Counsel for Her Majesty submitted that, to
interpret section 24.2 of the Penitentiary Act, sec
tion 14 of the Parole Act and section 137 of the
Code, as it existed in 1976, as meaning that "The
sentence he was then serving" in section 24.2
means a "Sentence consisting of a term of impris
onment commencing on the earliest day on which
any of those sentences of imprisonment (to which
[the appellant] was subject) commenced and
ending on the expiration of the last to expire of
such terms of imprisonment", pursuant to subsec
tion 14(1) of the Parole Act, would be wrong. It
was submitted that this would not only entitle the
appellant to earned remission up to one-third of
the aggregate calculated on that basis, namely,
fifteen years and four months, but would also
enable him to claim statutory remission as of
September 14, 1976, of one-quarter of that period,
pursuant to section 22 of the Penitentiary Act then
in force.
In my opinion, that result does not necessarily
follow. It is my view that the appellant was sen
tenced on September 14, 1976, to serve a term of
imprisonment of four months for the escape. Upon
being received into the penitentiary he would be
entitled to be credited with one-quarter of that
period. The appellant would also have become
entitled to statutory remission of one-quarter of
the nine-year term imposed April 13, 1976, upon
being received into the penitentiary. However,
with respect to the four-year term of imprisonment
and the two-year term of imprisonment imposed
respectively on July 6, 1971, and June 14, 1973,
there would be no new sentencing and the appel
lant would merely have been re-committed to peni-
tentiary to serve the time remaining to be served of
that six-year period.
Subsection 22(1) of the Penitentiary Act dealing
with statutory remission refers to "Every person
who is sentenced or committed to penitentiary". In
my opinion, the appellant would not have been
entitIed to statutory remission, except with respect
to any period remaining to be served of the aggre
gate of his terms of imprisonment. That this is so
was admitted by counsel for the appellant.
I am accordingly of the opinion that the appeal
should be allowed, the order appealed from should
be set aside and the question posed in paragraph 7
of the special case should be answered in the
positive. There should also be a declaration, in
accordance with paragraph 8 of the special case,
that the appellant is entitled to statutory and
earned remission up to one-third of the aggregate
calculated on the basis that "the sentence he is
then serving" in section 24.2 of the Penitentiary
Act means, in the case of the appellant, a "sent-
ence consisting of a term of imprisonment com
mencing on the earliest day on which any of the
sentences of imprisonment to which the appellant
was subject commenced, i.e. July 6, 1971, and
ending on the expiration of the last to expire of
such terms of imprisonment, pursuant to subsec
tion 14(1) of the Parole Act".
The appellant should have his costs of the
appeal and in the Trial Division.
KELLY D.J.: I concur in the reasons for judg
ment and the result herein of Cowan D.J.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.