Judgments

Decision Information

Decision Content

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.
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