T-5215-8(
Jean Thelma Keeler, Administratrix of the Estat(
of David Thompson (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Mahoney J.—Toronto, June 14 and
16, 1982.
Crown — Action for damages — False imprisonment ana
negligence — Application under Rule 474 to determine ques
tion of law — Deceased sentenced in 1965 to 10 years
imprisonment; released on parole in 1968; charged with rap(
and attempted rape in 1969; convicted in May 1969 of rap(
and indecent assault and sentenced, in September 1969, to 1l
years for rape and, for indecent assault, to 2 years to rur
consecutively to the 12 — Under s. 13 of Parole Act in effect
on date of convictions, parole 'forthwith forfeited" upon con
viction — Under new s. 13 in force on date of sentencing,
parole deemed to be forfeited on date offence committed —
Pursuant to s. 17 of Act, sentence served consecutive to reme-
nant of original sentence — Sentence properly recalculated —
Parole forfeited by conviction for rape, not deemed forfeited by
conviction for indecent assault — New s. 13 not retroactive —
No intention of Parliament to construe s. 13 in retrospective
terms — Twelve-year sentence required to be served consecu
tive to remenant of original sentence — Parole Act, S.C. 1958,
c. 38, ss. 13, 17 — Criminal Law Amendment Act, 1968-69,
S.C. 1968-69, c. 38, s. 101 — Federal Court Rule 474.
APPLICATION.
COUNSEL:
James Fyshe for plaintiff.
Robert W. Hubbard for defendant.
SOLICITORS:
James Fyshe, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is an action for damages for
false imprisonment and negligence. The Court is
asked, pursuant to Rule 474, to determine the
following question of law:
On the basis of the agreed statement of facts, was the sentence
of David Thompson properly recalculated in relation to his
convictions for the 1969 offences?
Thompson was sentenced, on July 12, 1965, to a
term of ten years in federal penitentiary. He was
released on parole on November 29, 1968. While
on parole, he was charged with attempted rape and
rape, counts 1 and 2, respectively, of the indict
ment. The attempted rape was alleged to have
occurred on February 17, 1969 and the rape two
days later. On May 20, 1969, he pleaded, firstly,
guilty as charged to count 2 and, secondly, as to
count 1, guilty to the reduced charge of indecent
assault. His pleas were accepted and he was
remanded in custody for sentencing.
At the date of the convictions, May 20, 1969,
the Parole Act, 1958, hereinafter the "old Act",
provided:
13. If a paroled inmate is convicted of an indictable offence,
committed after the grant of parole and punishable by impris
onment for a term of two years or more, his parole is thereby
forthwith forfeited.
The relevant provisions of the Criminal Law
Amendment Act, 1968-69 2 were proclaimed in
force effective August 26, 1969. It repealed section
13 of the old Act and substituted the following:
13. (1) Where a person who is, or at any time was, a paroled
inmate is convicted of an indictable offence, punishable by
imprisonment for a term of two years or more, committed after
the grant of parole to him and before his discharge therefrom
or the expiry of his sentence, his parole is thereby forfeited and
such forfeiture shall be deemed to have taken place on the date
on which the offence was committed. [My emphasis.]
Subsection 13(2) is not in play. 3
On September 8, 1969, Thompson was sen
tenced to twelve years' imprisonment for the rape
and, for the indecent assault, two years to run
consecutive to the twelve. The necessary adminis
trative action was then taken to return Thompson
to the penitentiary to serve the remenant of his
original sentence and the new ones.
'S.C. 1958, c. 38.
2 S.C. 1968-69, c. 38, s. 101.
3 Section 13 is now section 17 of R.S.C. 1970, c. P-2.
The issue is: was the parole forfeited by Thomp-
son's conviction for rape, which preceded the con
viction for indecent assault, or was it deemed
forfeited by the conviction for indecent assault, the
offence committed first? The parties have, by
agreement, spared the Court the necessity of
making two calculations. If his parole was forfeit
ed by the first conviction, he would have been
entitled to be released on April 17, 1981, at the
earliest. If, however, it is deemed to have been
forfeited on the date he committed the first of the
offences, his earliest date of release would have
been November 17, 1977. The discrepancy lies in
the mandatory requirement of section 17 of both
the old and new Acts 4 that the sentence for the
offence, conviction of which has forfeited the
parole, is to be served consecutive to the remenant
of the original sentence. If the two-year sentence
were the one subject of that requirement, the
direction of the sentencing judge that it be served
consecutive to the twelve-year sentence would not
prevail and the two-year sentence would be served
consecutive to the remenant while the twelve-year
sentence would be served concurrent with both.
That, I emphasize, is the agreed fact; I have made
no judgment on whether it is a correct conclusion
of law but merely accept it as such.
Thompson was convicted when the old Act was
in effect and, on his first conviction, the conviction
for rape, his parole was "thereby forthwith forfeit
ed." The proclamation of the new Act did not,
somehow, revive that parole. Section 13 of the new
Act is not cast in retrospective terms and nothing
in the related provisions leads one to conclude that
Parliament intended it to be so construed. The
pronouncement of sentence and its timing had no
bearing on the forfeiture, it merely supplied the
necessary numbers for an arithmetic calculation.
The twelve-year sentence for rape was required to
be served consecutive to the remenant of the origi
nal sentence.
The answer to the question is "yes". The Court
was not asked to make any order as to costs.
4 Section 17 is now section 21 of R.S.C. 1970, c. P-2.
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.