A-471-81
Valentine Nicholas Leschenko (Appellant)
v.
Attorney General of Canada, Solicitor General of
Canada, and Commissioner of Penitentiaries
(Respondents)
Court of Appeal, Pratte, Ryan JJ. and Kerr D.J.—
Ottawa, September 14 and 23, 1982.
Judicial review — Equitable remedies — Declarations —
Penitentiaries — Appeal from decision of Trial Division dis
missing application for declaration that appellant entitled to
credit against Canadian sentence for time served in United
States as result of offences committed in that Country follow
ing escape from custody in Canada — Appellant argues com
bined effect of s. 137(1) of Criminal Code, as it was in 1975,
ss. 4 and 11 of Transfer of Offenders Act and s. 14 of Parole
Act is that time spent in United States prison must be con
sidered as time during which he was serving sentences pro
nounced against him in Canada — Cross-appeal from decision
granting declaration that appellant's sentence be computed
according to s. 137(1) of Criminal Code, as it was in 1975
Respondents contending s. 22(4) of Penitentiary Act properly
applied by officials in computing sentence following conviction
for attempted escape — Appeal dismissed — Cross-appeal
allowed — Criminal Code, R.S.C. 1970, c. C-34, s. 137(1) as
am. by S.C. 1972, c. 13, s. 9 — Parole Act, R.S.C. 1970, c.
P-2, s. 14 as am. by R.S.C. 1970 (1st Supp.), c. 31, s. 1;
1977-78, c. 22, s. 19 — Penitentiary Act, R.S.C. 1970, c. P-6,
s. 22(4) — Transfer of Offenders Act, S.C. 1977-78, c. 9, ss.
4, 11.
The appellant, who had twenty years left to serve on a prison
term to which he had been sentenced in Canada, escaped from
a Canadian penitentiary in December 1975. He was at large
until February 1976 when he was, after having been
apprehended in the United States, tried, convicted and sen
tenced to a term of fifteen years in prison for offences commit
ted in that Country. After having been incarcerated for three
years in the United States, the appellant was transferred to
Canada, under the Transfer of Offenders Act, to serve the
balance of his term. On his return, Canadian authorities deter
mined that the appellant had yet to serve both the unserved
portion of his Canadian sentence, as of the time of his escape,
and the unserved portion of his United States sentence, concur
rently. No credit was given against his Canadian sentence for
the three years spent in custody in the United States. The
appellant contended that, taken together, subsection 137(1) of
the Criminal Code, as it was in 1975, sections 4 and 11 of the
Transfer of Offenders Act and section 14 of the Parole Act
provided statutory authority for considering the period in cus
tody in the United States as time during which he was serving
his Canadian sentence. Subsection 137(1) of the Code provided
that a person who escaped custody would, after undergoing the
punishment to which he was sentenced for that escape, serve
the portion of the term of imprisonment that was unserved at
the time of his escape, including statutory remission but exclud
ing earned remission, less any time spent in custody from the
time of his apprehension after the escape to the date on which
he was sentenced for that escape. Section 4 of the Transfer of
Offenders Act provides that where a Canadian offender who
has been convicted and sentenced by a court of a foreign state,
is transferred to Canada, that conviction and sentence are
deemed to have been imposed by a Canadian court. Section 11
of the Act provides that a Canadian offender who is transferred
to Canada shall be credited with the time already served in the
foreign state in respect of that conviction. Subsection 14(1) of
the Parole Act provides that where a person is sentenced to two
or more terms of imprisonment or, while in confinement, is
sentenced to an additional term, these constitute one sentence
which commences on the earliest day on which any of the
sentences begins and ends on the date that the last sentence
expires.
Held, the appeal should be dismissed. At common law the
time during which a prisoner is unlawfully at large, which
includes any time he spends in custody in a foreign prison for
crimes committed in that country, does not count as part of his
term of imprisonment. Further, there is no statutory provision
directing that time spent by the appellant in a United States
prison must be considered as time during which he was serving
sentences pronounced against him in Canada. Subsection
137(1) of the Criminal Code, as it then was, applied only to
persons who had been convicted and sentenced for having
escaped while undergoing imprisonment; not to persons, such as
the appellant, who had not been so convicted and sentenced.
Further, that subsection did not permit that the accused receive
credit against his Canadian sentence for time spent in custody
in the United States. The Trial Division was correct in finding
that the words "in custody" in that subsection referred to
custody in a Canadian penal institution. With respect to sec
tions 4 and 11 of the Transfer of Offenders Act, the purpose of
these sections is to determine the time that a Canadian offend
er, who is transferred to Canada, must spend in confinement in
Canada as a result of his sentencing by a foreign court. These
sections do not apply to the computation of sentences previously
imposed by a Canadian court. Finally, following the judgment
of the Ontario Court of Appeal in The Queen v. Dozois, the
argument that because under section 14 of the Parole Act all
sentences imposed on the appellant are merged into one—the
time spent in confinement under one sentence must be con
sidered as having been served against all other sentences, is
rejected.
Cross-appeal:
In August 1974, the appellant was convicted of attempted
escape under paragraph 421(b) of the Criminal Code, and
sentenced to six months imprisonment. Following this, officials
computed the full term of his sentence by applying the provi
sions of subsection 137(1) of the Criminal Code as if the
appellant had been sentenced for the offence of "escape" rather
than that of "attempted escape". When the appellant was
transferred from the United States to Canada, the officials
determined that an error that had been made in applying
subsection 137(1) of the Code rather than subsection 22(4) of
the Penitentiary Act, in computing his sentence. Subsection
22(4) provides that an inmate convicted of attempt to escape
immediately forfeits three-quarters of the statutory remission
standing to his credit at the time the offence was committed.
Based on this, the officials recalculated the appellant's sentence
with the result that the duration of the term was increased. The
appellant was granted a declaration by the Trial Division that
subsection 137(1) of the Code applied to the sentence for
attempted escape and that he was, therefore, entitled to have
the sentence he was serving recomputed accordingly.
Held, the cross-appeal should be allowed. While subsection
137(1) of the Criminal Code impliedly repealed subsection
22(4) of the Penitentiary Act in so far as it applied to an
inmate convicted of escape, the consequences to a person
convicted of a mere attempt to escape continued to be governed
by subsection 22(4). Based on this, a direction that subsection
137(1) be applied to the computation of a sentence for attempt
ed escape would have been without legal authority. The record
does not, however, show that such a direction was given in this
case. Even if the Court had referred to subsection 137(1) in the
same terms as they appeared in the warrant of committal, that
reference would not be interpreted as a direction that the
section be applied to the computation of the sentence but
merely as an erroneous reference to the section of the Code
pursuant to which the sentence was imposed. The appellant is
not entitled to have his sentence for attempted escape computed
as if subsection 137(1) of the Code were applicable to it.
CASES JUDICIALLY CONSIDERED
APPLIED:
Re MacDonald and Deputy Attorney-General of Canada
(1981), 59 C.C.C. (2d) 202 (Ont. C.A.); The Queen v.
Dozois, (July 22, 1981, Ont. C.A.); The Queen v. Law,
(November 6, 1981, Ont. C.A.).
COUNSEL:
Ronald R. Price, Q.C. for appellant.
Arnold S. Fradkin for respondents.
SOLICITORS:
Ronald R. Price, Q.C., Kingston, for appel
lant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
PRATTE J.: The appellant is an inmate of a
Canadian penitentiary who claims that the
authorities made two different mistakes in com
puting the duration of his imprisonment. He sued
in the Trial Division [[1982] 1 F.C. 338] and
sought declarations to that effect. He was partly
successful: the Court decided that one mistake had
been made and pronounced only one of the two
declarations sought. The appellant appeals from
that judgment which, in his view, should not have
denied him part of the relief he was seeking. The
respondents cross-appeal from the same judgment
and submit that the appellant's action should have
been dismissed.
The appeal and the cross-appeal raise two
entirely different issues and should, for this reason,
be considered separately.
1. The appeal.
The facts relating to the appeal, as they are
disclosed in the "Agreed Statement of Facts" filed
in the Trial Division, may be summarized as
follows:
1. On December 20, 1975, the appellant escaped
from a Canadian penitentiary where he was
serving a term of imprisonment for crimes com
mitted in Canada. At the time of his escape, he
had an unserved balance of imprisonment of
approximately 20 years.
2. On February 18, 1976, the appellant was
arrested in the United States and taken into
custody. On June 11, 1976, he was sentenced by
an American court to 15 years of imprisonment
for crimes committed in the United States.
3. Subsequent to his conviction and sentence in
the United States, the appellant was returned to
Canada pursuant to the Transfer of Offenders
Act, S.C. 1977-78, c. 9. He had then spent
nearly three years in custody in the United
States.
4. Following the appellant's return to penitentia
ry confinement in Canada, the authorities
responsible for the interpretation and computa
tion of sentences determined that the appellant
still had to serve concurrently the unserved por
tion, at the time of his escape, of sentences
pronounced against him in Canada (some 20
years) and the unserved portion of his American
sentence (some 12 years). They refused to give
credit to the appellant against the time remain
ing to be served on his Canadian sentences for
the period of nearly three years that he had
spent in custody in the United States.
On the basis of those facts, the appellant sought
from the Trial Division a declaration that he "is
entitled to credit against the time to be served
under sentence in Canada for the time spent in
custody in the United States, and to have the
sentence that he is serving recomputed according
ly". The appeal is directed against that part of the
judgment of the Trial Division which refused to
pronounce that declaration.
When the appellant was in custody in the
United States, he was illegally outside of the
Canadian penitentiary where he was to serve the
sentences that had been pronounced against him.
At common law, the time during which a prisoner
is unlawfully at large does not count as part of his
term of imprisonment.' This is so, in my view,
even if part of that time was spent in custody in a
foreign state since a Canadian sentence to impris
onment must be served in a Canadian prison. The
only question to be resolved on this appeal, there
fore, is whether there exists a statutory provision
directing that the time spent by the appellant in a
U.S. prison be considered as time during which he
was serving the sentences pronounced against him
in Canada.
Counsel for the appellant submitted that provi
sions to that effect are found in subsection 137(1)
of the Criminal Code, R.S.C. 1970, c. C-34, as
am. by S.C. 1972, c. 13, s. 9, as it read from July
15, 1972, to October 15, 1977, sections 4 and 11 of
the Transfer of Offenders Act and section 14 of
the Parole Act.
Subsection 137(1) of the Criminal Code read as
follows from July 15, 1972, to October 15, 1977:
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 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.
' Re MacDonald and Deputy Attorney-General of Canada
(1981), 59 C.C.C. (2d) 202 (Ont. C.A.); The Queen v. Dozois
(July 22, 1981, Ont. C.A., not reported); The Queen v. Law
(November 6, 1981, Ont. C.A., not reported).
That provision was in force at the time of the
appellant's escape. 2 This, according to his counsel,
was sufficient to make it applicable to the appel
lant in spite of the fact that he was neither convict
ed nor sentenced for his escape while the section
was in force. Counsel submitted that by virtue of
that provision, the appellant, when he returned to
Canada after his escape, had to serve "the term of
imprisonment that he was serving ... at the time
of his escape minus the time that he [had] spent in
custody" in the United States.
This argument must, in my view, be rejected.
First, I incline towards the view that the section
applied only to persons who had been convicted
and sentenced for having escaped while undergo
ing imprisonment: Second, assuming that the sec
tion applied to a person who, like the appellant,
had escaped but had not been sentenced for that
escape, its only effect in respect of such a person
was to prescribe that he shall "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". By its very terms, the rest of
the section could not affect a person who had not
been sentenced for his escape. Third, I think that
the Trial Division was right in holding that the
words "in custody" in subsection 137(1) referred
to custody in a Canadian penal institution.
The other statutory provisions invoked on behalf
of the appellant in support of the contention that
the time he spent in custody in the United States
should be considered as time served on his Canadi-
an sentences are sections 4 and 11 of the Transfer
of Offenders Act and subsection 14(1) of the
Parole Act. Sections 4 and 11 of the Transfer of
Offenders Act read as follows:
2 It was repealed by the Criminal Law Amendment Act,
1977, S.C. 1976-77, c. 53, s. 6 which came into effect on
October 15, 1977, and replaced by a provision reading in part
as follows:
137. (1) A person convicted for an escape committed
while undergoing imprisonment shall be sentenced 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 if the court, judge, justice or
magistrate by whom he is sentenced for the escape so orders,
consecutively....
4. Where a Canadian offender is transferred to Canada, his
finding of guilt and sentence, if any, by a court of the foreign
state from which he is transferred is deemed to be a finding of
guilt and a sentence imposed by a court of competent jurisdic
tion in Canada for a criminal offence.
11. (1) A Canadian offender transferred to Canada
(a) shall be credited with any time toward completion of his
sentence that was credited to him at the date of his transfer
by the foreign state in which he was convicted and sentenced;
and
(b) is eligible to earn remission as if he had been committed
to custody on the date of his transfer pursuant to a sentence
imposed by a court in Canada.
(2) Any time referred to in paragraph (l)(a) except time
actually spent in confinement pursuant to the sentence imposed
by the foreign court is subject to forfeiture for a disciplinary
offence as if it were remission credited under the Penitentiary
Act or the Prisons and Reformatories Act.
As to subsection 14(1) of the Parole Act, R.S.C.
1970, c. P-2, subsection 14(1), as am. by R.S.C.
1970 (1st Supp.), c. 31, s. 1; 1977-78, c. 22, s. 19;
it reads thus:
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.
Counsel for the appellant argued, as I under
stood him, that since the sentence pronounced
against the appellant in the United States is
deemed by section 4 of the Transfer of Offenders
Act to be a sentence of a Canadian court, it follows
that the time during which the appellant was in
confinement in the United States pursuant to the
sentence of the American court must be deemed to
have been spent in a Canadian penal institution
pursuant to a sentence of a Canadian court. I do
not agree. That submission was, in my view, cor
rectly dismissed by the Associate Chief Justice
whose judgment on this point was approved by the
Court of Appeal of Ontario in The Queen v.
Dozois. 3 The Transfer of Offenders Act provides
that a Canadian offender may serve in Canada a
sentence imposed by a court of a foreign country;
the purpose of sections 4 and 11 is to determine
the time that a Canadian offender who is trans
ferred to Canada will have to spend in confinement
in Canada as a result of the sentence imposed by
the foreign court. These provisions have no inci
dence, in my opinion, on the computation of sen
tences previously pronounced by Canadian courts.
Counsel for the appellant also invoked section
14 of the Parole Act. He said that under that
provision all the sentences imposed on the appel
lant are merged into only one sentence and that, as
a consequence, the time spent in confinement pur
suant to one of those sentences must be considered
as served pursuant to all the other sentences as
well. The very same argument was raised before
the Ontario Court of Appeal in The Queen v.
Dozois (supra). It was rejected by that Court. I do
not see any reason not to follow that decision.
I would, therefore, for those reasons, confirm
the decision of the Trial Division refusing to pro
nounce the first declaration sought by the plaintiff.
Before leaving that branch of the case, I must
mention that, before the hearing of the appeal,
counsel for the appellant made an application in
writing pursuant to Rule 324 for an order author
izing the amendment of his statement of claim and
the introduction of new evidence in the record so
as to show that on November 5 and 14, 1980, three
further convictions and sentences of imprisonment
were pronounced against the appellant, one for
being unlawfully at large in Canada and two for
two offences of escape from lawful custody. That
application was dismissed by Mr. Justice Le Dain
on November 23, 1981. At the hearing of the
appeal, counsel for the appellant renewed that
application. The Court took the matter under
advisement. In my view, the decision of Mr. Jus
tice Le Dain should not be reversed. Counsel has
3 Not reported, July 22, 1981 (Ont. C.A.).
not been able to show that those convictions and
sentences of November 5 and 14, 1980, are in any
way relevant to the issues raised on the appeal.
II. The cross-appeal.
The facts relating to the cross-appeal are not in
issue:
1. On August 29, 1974, the appellant, who was
then imprisoned at the Saskatchewan Peniten
tiary, was found guilty of the offence of attempt
to escape from lawful custody and sentenced to
6 months imprisonment. The warrant of com
mittal that was issued on the same day related
that the appellant had been convicted upon a
charge that he did "unlawfully attempt to
escape from lawful custody at the Saskatchewan
Penitentiary, contrary to section 421(b) of the
Criminal Code"; it also stated that the appellant
had been sentenced "to be imprisoned in the
Saskatchewan Penitentiary for a term of six
months pursuant to Section 137 of the Criminal
Code".
2. Following that sentence, officials of the
Canadian Penitentiary Service computed the
duration of the appellant's sentence and, in
making that computation, applied the provisions
of subsection 137(1) of the Criminal Code as if
the appellant had been sentenced for the offence
of escape rather than that of attempt to escape.
3. A few years later, when the appellant was
transferred to Canada from the United States,
the same officials came to the view that they
had made an error, in 1974, in applying subsec
tion 137(1) of the Criminal Code rather than
subsection 22(4) of the Penitentiary Act, R.S.C.
1970, c. P-6, to the computation of the appel
lant's sentence. They corrected their alleged
error and thereby apparently increased the
duration of the appellant's imprisonment. 4
Those are the facts which led the appellant to
seek a declaration "that section 137(1) of the
Criminal Code, as it then provided, is applicable in
law to the sentence of attempted escape imposed
on the plaintiff on the 29th day of August, 1974,
I do not understand how the application of subsection 22(4)
of the Penitentiary Act rather than subsection 137(1) of the
Criminal Code to the computation of the appellant's sentence
can be prejudicial to him. However, both counsel said that they
agreed on that point.
and that the plaintiff is entitled to have the sen
tence that he is serving recomputed accordingly."
The Trial Judge pronounced that declaration.
He considered, first, that the terms of the sentence
imposed on the appellant required that it be com
puted by applying subsection 137(1) of the Crimi
nal Code, and second, that he did not have the
power to modify that sentence. That is the decision
which is in issue on this cross-appeal.
It may be useful to recall that, in 1974, subsec
tion 137(1) of the Criminal Code read as follows:
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 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.
When that provision had been enacted, in 1972, it
had impliedly repealed subsection 22(4) of the
Penitentiary Act, in so far as it applied to the
inmate convicted of the offence of escape. That
subsection of the Penitentiary Act read as follows:
22....
(4) Every inmate who is convicted by a criminal court of the
offence of escape, attempt to escape or being unlawfully at
large forthwith forfeits three-quarters of the statutory remis
sion standing to his credit at the time that offence was
committed.
A mere reading of those two provisions clearly
shows, in my view, that if the Judge who sentenced
the appellant for attempt to escape in 1974 really
directed that subsection 137(1) be applied to the
computation of that sentence, he gave an illegal
direction which exceeded his authority. Subsection
137(1) applied when a person who had escaped
while undergoing imprisonment had been sen
tenced for that escape; it clearly did not apply to
the appellant who had merely attempted to escape
and had been convicted and sentenced for that
offence. The consequences of the appellant's con
viction and sentence were, therefore, governed by
subsection 22(4) of the Penitentiary Act rather
than by subsection 137(1) of the Criminal Code
and the sentencing Judge had no authority to
direct otherwise.
However, in my opinion, the record does not
show that the sentencing Judge ever gave such an
illegal direction. The record contains photostats of
the warrant of committal (which, as I have said,
contains a reference to section 137 of the Criminal
Code) and of the decision of the Judge endorsed on
the information. That endorsement, however, is
not legible so that it is impossible to know whether
the Judge actually referred to section 137 in his
decision. I add that even if the Judge, in his
decision, had referred to section 137 of the Crimi
nal Code in the same terms as those that appear in
the warrant of committal, I would not interpret
that reference as a direction that section 137 be
applied to the computation of the sentence but
merely as an erroneous reference to the section of
the Code pursuant to which the sentence was
imposed. It follows, therefore, that I am of opin
ion, contrary to what was held by the Trial Divi
sion, that the appellant was not entitled to have his
sentence for attempt to escape computed as if
subsection 137(1) of the Criminal Code as it stood
in 1974 were applicable to it.
I would, for those reasons, dismiss the appeal
and allow the cross-appeal with costs and substi
tute for the judgment of the Trial Division a
judgment dismissing the appellant's action with
costs.
RYAN J.: I agree.
KERR D.J.: I agree.
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.