T-1356-82
Eddy Kula (Applicant)
v.
Raymond Picard, in his capacity as Sentence
Administrator of the Archambault Maximum
Security Institution and the Queen in right of
Canada (Respondents)
Trial Division, Marceau J.—Montreal, March 15;
Ottawa, March 18, 1982.
Judicial review — Equitable remedies — Declarations —
Parole — Applicant seeks ruling regarding remainder of
prison term — Applicant released under mandatory supervi
sion on July 10, 1974 — Release suspended August 20, 1974
— Sentenced to five years' imprisonment for one offence and
to varying terms to be served concurrently with five-year
sentence for other offences on September 25 — Mandatory
supervision revoked when appeal periods expired — Judge
said nothing about time remaining to be served on earlier
sentences — Whether remanet should be added to new sentence
or served concurrently — Authorities applied s. 21 of Parole
Act (as it was in 1974) which provided that when parole
forfeited by conviction for indictable offence, term of impris
onment shall be unexpired remainder of old sentence in addi
tion to new sentence — Applicant submits that application of
s. 21 alters sentence imposed by Judge since s. 649 of Criminal
Code provides that sentence begins to run when imposed —
Application dismissed — S. 649 subject to contrary provisions
in other enactments — No conflict between two sections since
s. 21 does not attempt to determine starting point of total term
of imprisonment — Application of s. 21 mandatory, but left
intact sentence imposed by Judge — Application procedure
may be inappropriate for relief sought — Parole Act, R.S.C.
1970, c. P-2, s. 21, as amended by R.S.C. 1970 (1st Supp.), c.
31, s. 2 — Criminal Code, R.S.C. 1970, c. C-34, s. 649.
MOTION.
COUNSEL:
Claude Lanctôt for applicant.
Claude Joyal for respondents.
SOLICITORS:
Lanctôt, Dessureault, Palnick & Gauthier,
Laprairie, for applicant.
Deputy Attorney General of Canada for
respondents.
The following is the English version of the
reasons for order rendered by
MARCEAU J.: Applicant is at present an inmate
in the Archambault Institution at Ste-Anne-des-
Plaines in the Province of Quebec. His motion,
entitled [TRANSLATION] "for relief in accordance
with section 18 of the Federal Court Act", is
essentially seeking to obtain a Court ruling regard
ing the time he still has to serve in prison. A notice
from the Chief Sentence Administrator indicates,
in his submission, that the authorities calculated
this time incorrectly, and he would like the situa
tion to be clarified.
I have serious doubts as to whether this sum
mary procedure is strictly admissible in view of the
conclusions sought: a declaratory judgment is not
obtained by motion. However, I shall overlook the
procedural difficulty in order to dispose of the
application on its merits: it is in applicant's interest
to know at once that his interpretation is not
admissible.
The facts are straightforward and it is easy to
see the question they at once raise. On July 10,
1974 applicant, who was serving terms of impris
onment on which there were still 218 days to run,
was released under "mandatory supervision" by a
decision of the National Parole Board. On August
20, 1974, his release under supervision was abrupt
ly suspended when a warrant of committal was
issued following the commission by him of a new
series of criminal offences. On September 25, he
received a sentence for the first group of five
offences committed on the same occasion: for one
of the offences, the subject of a case numbered
11928, the Judge sentenced him [TRANSLATION]
"to five years' imprisonment" without further
clarification, and on the other four, all separate
cases, the Judge sentenced him to varying numbers
of months of imprisonment, which were in each
case to be [TRANSLATION] "concurrent with case
No. 11928". When the appeal deadlines for these
sentences had expired, appellant's "mandatory
supervision", which had been suspended when he
was arrested the preceding August 20, was finally
revoked pursuant to section 13 of the Parole Act,
R.S.C. 1970, c. P-2. It then became necessary to
determine the effect of this revocation in practice,
and in particular to decide how to treat the time
remaining to be served on the earlier sentences
(182 days at this time) in relation to the time
specified in the concurrent sentences of September
25. As the Judge had said nothing regarding this
remanet of 182 days, was there not a question as to
whether these days should be added to the five
years newly imposed or be served "concurrently"?
For the persons responsible for administering sen
tences, the answer to the question was contained in
a section of the Parole Act, as it was in 1974
(R.S.C. 1970 (1st Supp.), c. 31), section 21, which
read as follows:
21. (1) When any parole is forfeited by conviction for an
indictable offence, the paroled inmate shall undergo a term of
imprisonment, commencing when the sentence for the indict
able offence is imposed, equal to the aggregate of
(a) the portion of the term to which he was sentenced that
remained unexpired at the time his parole was granted,
including any period of remission, including earned remis
sion, then standing to his credit,
(b) the term, if any, to which he is sentenced upon conviction
for the indictable offence, and
(e) any time he spent at large after the sentence for the
indictable offence is imposed except pursuant to parole
granted to him after such sentence is imposed,
minus the aggregate of
(d) any time before conviction for the indictable offence
when the parole so forfeited was suspended or revoked and he
was in custody by virtue of such suspension or revocation,
and
(e) any time he spent in custody after conviction for the
indictable offence and before the sentence for the indictable
offence is imposed.
To the authorities, the provisions of this section,
applicable to an inmate under supervision as to one
on parole (subsection 15(2) of the Act), were
clear: the time of the remanet was not to be served
concurrently with that of the new sentences; the
two were to be added together.
It is this interpretation by the authorities which
applicant seeks to dispute by his action. He is
simply questioning whether it is possible to apply
section 21 of the Parole Act here. Why? Because,
in his view, the effect of applying the provisions of
this section would be to alter the sentence as
imposed by the Judge, since under section 649 of
the Criminal Code, R.S.C. 1970, c. C-34, a sen
tence must begin to run immediately on the day it
is imposed, not at a later date, and the administra
tion cannot arrogate to itself the right to alter a
sentence imposed by a judge.
I feel that applicant is misreading or not fully
reading the provisions in question. First, section
649 of the Criminal Code contains a significant
exception to the basic principle enacted in the
section, since it states that a sentence commences
when it is imposed "except where a relevant enact
ment otherwise provides". In any case, however,
there is no conflict between the general provision
of section 649 of the Criminal Code taken in itself,
and that of section 21 of the Parole Act: the latter
section peremptorily determines the time that an
inmate on parole or under supervision must serve if
his parole is forfeited as the result of a new
sentence, and it provides that this time shall be
what remained unexpired on the old sentence in
addition to that of the new sentence; the section
does not seek to determine the starting point from
which this total term shall run, or that of any of its
component parts. Section 21 of the Parole Act in
1974 was mandatory. The Judge could not disre
gard it, and there is no indication that he did so: its
application left intact the sentence imposed by
him, regardless of the scope of section 649 of the
Criminal Code. The administrative authorities
could not come to any other conclusion than they
did.
This motion cannot be allowed. Applicant's
arguments are without basis; none of the remedies
which he has sought expressly or tacitly can be
granted.
ORDER
The motion is dismissed with costs.
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.