A-514-85
Brian James Dempsey (Appellant)
v.
Attorney General of Canada, Solicitor General of
Canada and Commissioner of Corrections
(Respondents)
INDEXED AS: DEMPSEY v. CANADA (ATTORNEY GENERAL)
(RCA.)
Court of Appeal, Pratte, Urie and Hugessen JJ.-
Ottawa, February 19 and March 26, 1986.
Criminal justice - Imprisonment - Whether inmate in
federal penitentiary for Criminal Code offence entitled, under
Code s. 659(2), to have penitentiary authorities accept unex-
ecuted warrants of committal for provincial offences, and to
serve provincial sentences there - Whether provincial and
Code sentences can be served concurrently - Criminal Code,
R.S.C. 1970, c. C-34, ss. 658, 659 (as am. by S.C. 1974-75-76,
c. 93, s. 79; 1976-77, c. 53, s. 13) - Parole Act, R.S.C. 1970,
c. P-2, s. 2 (as am. by S.C. 1976-77, c. 53, s. 17(1); 1980-81-
82-83, c. 110, s. 77) - Interpretation Act, R.S.C. 1970, c.
I-23, s. 27(2) - Interpretation Act, R.S.O. 1980, c. 219, s. 23
- Provincial Offences Act, R.S.O. 1980, c. 400, s. 65 - An
Act for better proportioning the punishment to the offence, in
certain cases, and for purposes therein mentioned, S.C. 1842,
c. 5, s. III - An Act for the better Management of the
Provincial Penitentiary, S.C. 1851, c. 2, s. 77 - An Act
respecting Procedure in Criminal Cases, and other matters
relating to Criminal Law, S.C. 1869, c. 29, s. 96.
Penitentiaries - Criminal Code s. 659(2) entitling federal
penitentiary inmate to have unexecuted warrants of committal
for provincial offences received by Correctional Service of
Canada and duly executed, and to serve all provincial sen
tences there consecutively to Code sentences being served
Criminal Code, R.S.C. 1970, c. C-34, ss. 658, 659 (as am. by
S.C. 1974-75-76, c. 93, s. 79; 1976-77, c. 53, s. 13) - Parole
Act, R.S.C. 1970, c. P-2, s. 2 (as am. by S.C. 1976-77, c. 53, s.
17(1); 1980-81-82-83, c. 110, s. 77) - Interpretation Act,
R.S.C. 1970, c. I-23, s. 27(2) - Interpretation Act, R.S.O.
1980, c. 219, s. 23 - Provincial Offences Act, R.S.O. 1980, c.
400, s. 65 - An Act for better proportioning the punishment
to the offence, in certain cases, and for purposes therein
mentioned, S.C. 1842, c. 5, s. III - An Act for the better
Management of the Provincial Penitentiary, S.C. 1851, c. 2, s.
II - An Act respecting Procedure in Criminal Cases, and
other matters relating to Criminal Law, S.C. 1869, c. 29, s. 96.
Constitutional law — Distribution of powers — Parlia
ment's power to legislate as to penitentiaries such that Code s.
659(2) validly applying to sentences for breaches of provincial
as well as federal law — Whether sentences served concurrent
ly or consecutively question of sentence calculation — Matter
for provincial legislature — Ontario rule sentences consecutive
unless otherwise ordered — Constitution Act, 1867, 30 & 31
Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am. by
Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item I), ss. 91(27), (28), 92(6) — Criminal
Code, R.S.C. 1970, c. C-34, ss. 658, 659 (as am. by S.C.
1974-75-76, c. 93, s. 79; 1976-77, c. 53, s. 13) — Federal
Court Rules, C.R.C., c. 663, R. 1101 — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 7,
9, 15 — An Act for better proportioning the punishment to the
offence, in certain cases, and for purposes therein mentioned,
S.C. 1842, c. 5, s. III — An Act for the better Management of
the Provincial Penitentiary, S.C. 1851, c. 2, s. II — An Act
respecting Procedure in Criminal Cases, and other matters
relating to Criminal Law, S.C. 1869, c. 29, s. 96.
The appellant, an inmate in a federal penitentiary serving
sentences for Criminal Code offences, seeks a declaration that
he is entitled, under subsection 659(2) of the Code, to have the
Correctional Service of Canada accept unexecuted warrants of
committal issued against him with respect to municipal by-law
contraventions, and that the sentences therefor, totalling 85
days of imprisonment, run concurrently with the appellant's
current penitentiary term. This is an appeal from the Trial
Division's dismissal of his action.
Held (Pratte J. dissenting), the appeal should be allowed.
Per Hugessen J.: The criminal justice system in each prov
ince of Canada is fundamentally unitary. There is no statutory
indication as to how one is to distinguish between a prison and
a penitentiary as those terms are used in paragraphs 91(28)
and 92(6) of the Constitution Act, 1867. Historically, a peni
tentiary was understood to be a prison to which persons serving
sentences of two years or more were sent. The nature of the
institution and the character of the crimes were irrelevant in
determining who should go to a penitentiary. It is clear that
subsection 659(2) of the Code applies squarely to the facts
herein. There is nothing in the subsection itself, nor in the
historical and constitutional background, to indicate that that
provision is limited in its reach to sentences imposed for breach
of federal statutes. A restrictive interpretation would frustrate
and indeed negate the whole federal system of parole and
mandatory supervision. The fate of persons subject to both
federal and provincial sentences would be determined either by
hazard or, worse, by arbitrary authority.
Parliament's power to legislate with respect to penitentiaries
must include the power to define what is a penitentiary. "Peni-
tentiary" has, since earliest times, been defined in terms of the
length of the sentence to be served without regard to the
legislative source under which the sentence was imposed. Fur
thermore, the federal definition of a penitentiary is not incom
patible with the applicable provincial legislation.
Finally, there is no reported case holding that federal legisla
tion regarding admission to penitentiaries is limited to legisla
tion concerning persons serving sentences for breaches of feder
al law only.
The request that the provincial sentences be served concur
rently with the federal sentences raises a question of calculating
sentence time, a matter for the provincial legislature. In
Ontario, the rule is that multiple sentences shall be consecutive
unless otherwise ordered.
Per Urie J.: Hugessen J.'s conclusion, flowing from his
interpretation of subsection 659(2), is both logical and compell
ing. That interpretation cannot, however, prevail unless Parlia
ment has the constitutional power to regulate the manner
whereby sentences are served for convictions for offences
against provincial statutes. While Parliament's power to legis
late with respect to penitentiaries does not necessarily include
the power to define what a penitentiary is, it does include,
however, the power to legislate as to who shall be imprisoned
therein without regard to the legislative source under which the
sentence of imprisonment was imposed. Federal jurisdiction
extends to the control and treatment of any person serving a
sentence in a penitentiary. It must therefore include the obliga
tion to accept committal orders relating to terms of imprison
ment arising from offences contrary to provincial statutes.
Per Pratte J. (dissenting): The appeal should be dismissed.
The fact that a narrow interpretation of subsection 659(2)
would lead to unfair results is irrelevant because that provision
clearly applies only to federal sentences. Section 659 is part of
the Criminal Code, enacted pursuant to subsection 91(27) of
the Constitution Act, 1867 and is meant to apply to sentencing
under the Code for offences thereunder. It would require very
clear language to extend the application of the sentencing
provisions in the Code to provincial sentences. Furthermore,
Parliament lacks constitutional power to determine how and
when a provincial sentence of imprisonment must be served.
That power is ancillary to the provinces' power to enact laws
imposing penalties or punishment for the violation of their
statutes.
CASES JUDICIALLY CONSIDERED
APPLIED:
In re New Brunswick Penitentiary (1880), [1875-1906]
Cout. S.C. 24; Canadian Pioneer Management Ltd. et al.
v. Labour Relations Board of Saskatchewan et al.,
[1980] 1 S.C.R. 433.
DISTINGUISHED:
R. v. Hauser, [1979] 1 S.C.R. 984; Attorney General of
Canada v. Canadian National Transportation, Ltd. et al.,
[1983] 2 S.C.R. 206.
REFERRED TO:
Bedard v. Directeur du Centre de Détention de Montréal
(judgment dated November 2, 1983, Quebec Superior
Court, 500-36-525-835, not reported); Durand c. Forget
(1980), 24 C.R. (3d) 119 (Que. S.C.); Bedard v. Correc
tional Service of Canada, [1984] 1 F.C. 193 (T.D.).
COUNSEL:
Ronald R. Price, Q.C. for appellant.
Brian J. Saunders for respondents.
SOLICITORS:
Ronald R. Price, Q. C., Kingston, Ontario, for
appellant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
PRATTE J. (dissenting): The appellant is an
inmate of the Kingston penitentiary, a federal
institution, where he is serving prison terms totall
ing 12 years pursuant to convictions under the
Criminal Code [R.S.C. 1970, c. C-34]. At various
times shortly before and shortly after his incarcer
ation, he was sentenced to a total of 85 days of
imprisonment for contraventions to parking
by-laws of the City of Toronto. He thought that he
was entitled to serve those latter sentences in the
penitentiary at the same time as his Criminal
Code sentences; he accordingly arranged to have
the warrants of committal that had been issued in
respect of the parking offences served on the offi
cials of the Correctional Service of Canada at
Kingston penitentiary. Those officials, however,
refused to accept them. That prompted the appel
lant to bring an action in the Trial Division seek
ing a declaration that he was entitled to serve
those sentences in the penitentiary together with
the sentences pronounced against him under the
Criminal Code. That action was dismissed by a
judgment of Rouleau J. [[1986] 1 F.C. 217].
Hence this appeal.
It is not disputed that under the laws of Ontario,
the sentences here in question must be served in a
provincial correctional institution rather than in a
penitentiary. The position of the appellant is that,
notwithstanding the laws of Ontario, subsection
659(2) of the Criminal Code [as am. by S.C.
1974-75-76, c. 93, s. 79] prescribes that those
sentences be served in the penitentiary where he is
already incarcerated.
That subsection 659(2) must be read in its
context [659 as am. by S.C. 1976-77, c. 53, s. 13]:
658. Every one who is convicted of an indictable offence for
which no punishment is specially provided is liable to imprison
ment for five years.
659. (1) Except where otherwise provided, a person who is
sentenced to imprisonment for
(a) life,
(b) a term of two years or more, or
(c) two or more terms of less than two years each that are to
be served one after the other and that, in the aggregate,
amount to two years or more,
shall be sentenced to imprisonment in a penitentiary.
(2) Where a person who is sentenced to imprisonment in a
penitentiary is, before the expiration of that sentence, sentenced
to imprisonment for a term of less than two years, he shall be
sentenced to and shall serve that term in a penitentiary, but if
the previous sentence of imprisonment in a penitentiary is set
aside, he shall serve that term in accordance with subsection
(3).
(3) A person who is sentenced to imprisonment and who is
not required to be sentenced as provided in subsection (1) or
(2) shall, unless a special prison is prescribed by law, be
sentenced to imprisonment in a prison or other place of confine
ment within the province in which he is convicted, other than a
penitentiary, in which the sentence of imprisonment may be
lawfully executed.
(4) Where a person is sentenced to imprisonment in a
penitentiary while he is lawfully imprisoned in a place other
than a penitentiary he shall, except where otherwise provided,
be sent immediately to the penitentiary and shall serve in the
penitentiary the unexpired portion of the term of imprisonment
that he was serving when he was sentenced to the penitentiary
as well as the term of imprisonment for which he was sentenced
to the penitentiary.
(5) Where, at any time, a person who is imprisoned in a
prison or place of confinement other than a penitentiary is
subject to two or more terms of imprisonment, each of which is
for less than two years, that are to be served one after the other,
and the aggregate of the unexpired portions of those terms at
that time amounts to two years or more, he shall be transferred
to a penitentiary to serve those terms; but if any one or more of
such terms is set aside and the unexpired portions of the
remaining term or terms on the day on which he was trans
ferred under this section amounted to less than two years, he
shall serve - that term or terms in accordance with subsection
(3).
(6) For the purposes of this section, where a person is
sentenced to imprisonment for a definite term and an indeter
minate period thereafter, such sentence shall be deemed to be
for a term of less than two years and only the definite term
thereof shall be taken into account in determining whether he is
required to be sentenced to imprisonment in a penitentiary or to
be committed or transferred to a penitentiary under subsection
(5).
(6.1) Where, either before or after the coming into force of
this subsection, a person has been sentenced, committed or
transferred to a penitentiary, otherwise than pursuant to an
agreement made under subsection 15(1) of the Penitentiary
Act, any indeterminate portion of his sentence shall, for all
purposes, be deemed not to have been imposed.
(7) For the purposes of subsection (3) "penitentiary" does
not, until a day to be fixed by proclamation of the Governor in
Council, include the penitentiary mentioned in section 82 of the
Penitentiary Act, chapter 206 of the Revised Statutes of
Canada, 1952.
Subsection 659(2), according to appellant's
counsel, applies not only to sentences pronounced
under the Criminal Code and other federal legisla
tion, but also to sentences imposed pursuant to
provincial enactments. It follows, says he, that the
appellant must serve all the sentences pronounced
against him at the same time while he is in the
penitentiary.
In support of that wide interpretation of subsec
tion 659(2), counsel for the appellant advanced
various arguments. First, he relied on two judg
ments of the Superior Court of Quebec adopting
that interpretation.' Second, he invoked "consider-
ations of policy and correctional practice" that
make it desirable that a wide interpretation be
given to the subsection. Third, he stressed that
many anomalies would result from a narrow read
ing of subsection 659(2). Finally, he referred to
the Parole Act [R.S.C. 1970, c. P-2] which, in his
view, made clear that the rules governing the
Bedard v. Directeur du Centre de Détention de Montréal
(judgment dated November 2, 1983, Quebec Superior Court,
500-36-525-835, not reported); Durand c. Forget (1980), 24
C.R. (3d) 119 (Que. S.C.).
sentences pronounced under provincial and federal
legislations were not entirely distinct.
I do not see any force in those arguments.
In my opinion, the two judgments of the Supe
rior Court invoked by the appellant are authorities
of little weight. They are in contradiction with the
decision under appeal as well as with another
decision of the Trial Division in Bedard v. Correc
tional Service of Canada. 2 More importantly, the
only reason given in their support by the learned
Judges who pronounced them is that another inter
pretation of subsection 659(2) would lead to unfair
results. That is a consideration which, like the
consideration of policy relied on by the appellant,
might bear on the interpretation of the subsection
if it were really obscure. However, as I will say in
a moment, that is not the case.
As to the anomalies which, according to counsel,
would flow from a narrow reading of the subsec
tion, they would not result from that narrow read
ing, but, rather, from the assumption made by
counsel that subsection 659(4) should in any event
be read as applying to both federal and provincial
sentences. I concede that if subsection 659(4) is
given that wide interpretation, subsection 659(2)
must also be interpreted in the same manner.
However, in my opinion, both subsections must be
interpreted narrowly as applying only to sentences
imposed pursuant to federal legislation.
Contrary to what was said by counsel for the
appellant, the provisions of the Parole Act do not
support his interpretation. Indeed, counsel took for
granted that the Parole Act applied to inmates
serving "provincial sentences" in federal penitenti
aries. That assumption, however, ignores the defi-
2 [1984] 1 F.C. 193(T.D.).
nition of the word "inmate" in that Act 3 and is
also based on the further unwarranted assumption
that subsection 659(4) applies to both provincial
and federal sentences.
In my opinion, subsection 659(2) is clear and
must be interpreted as applying only to sentences
imposed pursuant to federal statutes. I base this
conclusion on two considerations: first, section 659
is part of the Criminal Code and, second, it was
enacted by a Parliament having a limited legisla
tive competence.
Section 659 is part of the Criminal Code in
which Parliament, in the exercise of its power
under subsection 91(27) of the Constitution Act,
1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970,
Appendix II, No. 5] (as am. by Canada Act 1982,
1982, c. 11 (U.K.), Schedule to the Constitution
Act, 1982, Item 1)1, has defined the various crimes
and determined how they should be punished. It
stands to reason that a provision which, like sec
tion 659, deals with sentencing applies to sentenc
ing pursuant to the Code for offences under the
Code. True, by reason of subsection 27(2) of the
Interpretation Act, 4 the provisions of the Code are
applicable to offences created by other federal
enactments; however, it would require very clear
language to extend the application of the sentenc
ing provisions of the Code so as to make them
applicable to sentences imposed under provincial
enactments. In the absence of such clear language,
Parole Act, R.S.C. 1970, c. P-2, s. 2 [as am. by S.C.
1976-77, c. 53, s. 17(1); 1980-81-82-83, c. 110, s. 771:
2. In this Act .. .
"inmate" means a person who is under a sentence of impris
onment imposed pursuant to an Act of Parliament or
imposed for criminal contempt of court ...
Interpretation Act, R.S.C. 1970, c. I-23, s. 27(2):
27....
(2) All the provisions of the Criminal Code relating to
indictable offences apply to indictable offences created by an
enactment, and all the provisions of the Criminal Code
relating to summary conviction offences apply to all other
offences created by an enactment, except to the extent that
the enactment otherwise provides.
I cannot interpret section 659 otherwise than as
applying only to sentences pronounced pursuant to
the Criminal Code or other federal statutes. On
this point I fully agree with the Trial Judge.
•
The fundamental reason, however, why, in my
opinion, the appellant's interpretation of subsec
tion 659(2) must be rejected is that Parliament
lacks the constitutional power to determine how
and when a sentence of imprisonment imposed
under a provincial statute must be served. Under
sections 91 and 92 of the Constitution Act, 1867,
the provincial legislatures as well as Parliament
have the power to enact laws imposing penalties or
punishments for the violation of their respective
statutes. That power comprises the power to pro
vide for sentences of imprisonment and determine
how and when these sentences will be served. In
my view, the power of Parliament to determine
how sentences of imprisonment shall be served is
ancillary to its power to enact laws providing for
sentences of imprisonment. It follows that Parlia
ment cannot regulate the manner in which a sen
tence of imprisonment imposed pursuant to a pro
vincial statute shall be served any more that it can
impose a penalty for the violation of such a
statute. 5
5 Dealing with this constitutional aspect of the case, Rouleau
J. has expressed the opinion that Parliament could regulate the
manner in which "provincial sentences" should be served inas
much as such an intrusion in the provincial sphere of jurisdic
tion was "truly necessary for the creation of a coherent, just
and effective system of rules governing the serving of sentences
in federal penitentiaries." I cannot agree with that view since I
cannot conceive that it be necessary for Parliament to regulate
the manner in which "provincial sentences" are to be served in
order to completely regulate the manner in which "federal
sentences" are to be served.
In this discussion, I have not mentioned subsection 91(28) of
the Constitution Act, 1867, which gives Parliament the exclu
sive authority to legislate in relation to "The Establishment,
Maintenance and Management of Penitentiaries", because, in
my view, that authority clearly does not comprise the power to
determine that sentences imposed under provincial statutes be
served in federal penitentiaries rather than in provincial prisons
established pursuant to subsection 92(6) of the Constitution
Act, 1867.
Counsel for the appellant also raised in support
of the appeal an argument that he had not
advanced in first instance. He invoked the Canadi-
an Charter of Rights and Freedoms [being Part I
of the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)] and argued that
subsection 659(2), as interpreted by the Trial Divi
sion, violates the appellant's rights under sections
7, 9 and 15 of the Charter. That argument, how
ever, was based on the assumption that subsection
659(4) applied to both "federal" and "provincial"
sentences. As I have already said that this assump
tion is unjustified, it is unnecessary to give any
further consideration to the argument.
I would dismiss the appeal with costs.
* * *
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of my brothers Pratte
and Hugessen JJ., respectively. I agree with Mr.
Justice Hugessen when he says that "As a matter
of straightforward statutory interpretation and
absent any questions of vires arising from the
distribution of legislative powers under our federal
system of government, I would have thought that
it was clear that the foregoing provisions [section
659] applied squarely to the facts of the appel
lant's case." His conclusion arising from his anal
ysis of the section, in that context, is both logical
and compelling. However, that interpretation
cannot prevail unless Parliament has the constitu
tional power to regulate the manner whereby sen
tences are served for convictions for offences
against provincial statutes.
I do not see that Parliament's power to legislate
respecting penitentiaries must include the power to
define what a penitentiary is. Parliament's juris
diction over penitentiaries, by historical custom or
convention, contemplates a place for service of a
sentence of two years or more. In my view, Parlia
ment's power to legislate with respect to penitenti
aries must, in the context of 1867 and still more so
today, include the power to legislate as to who
shall be imprisoned therein without regard to the
legislative source under which the sentences of
imprisonment was imposed.
In amplification of that view, as I see it, Parlia
ment's jurisdiction over penitentiaries includes
within its limits power over any person who, by
reason of a sentence imposed for conviction of an
offence, whether of provincial or federal origin, is
incarcerated in a penitentiary. That power must
surely include not only the physical custody and
well-being of such person but the ability and obli
gation to accept committal orders relating to terms
of imprisonment arising from offences contrary to
provincial statutes. More simply put, it seems to
me that the federal jurisdiction extends to the
control and treatment of any person serving a
sentence in a penitentiary.
I would dispose of the appeal in the manner
contemplated by Mr. Justice Hugessen in his rea
sons for judgment.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This case raises the broad issue
as to whether a person serving time in a federal
penitentiary for an offence under the Criminal
Code must wait until his release from the peniten
tiary to serve sentences which have been imposed
upon him for breach of provincial statutes. More
narrowly, it raises the question as to whether
penitentiary authorities can refuse to accept war
rants of committal for provincial offences in
respect of a person already in their custody under
a warrant of committal for a criminal offence.
However one chooses to put the question, the
judgment under appeal answered it affirmatively.
In my view, it was wrong to do so.
The facts of the matter can be very shortly
stated. On January 31, 1980, the appellant, having
been convicted of a number of serious crimes, was
sentenced by the Supreme Court of Ontario to
prison terms totalling twelve years. Pursuant to
law, he was conveyed to the penitentiary to serve
those terms. Prior to the imposition of those sen
tences, a justice of the peace had imposed on the
appellant twenty-four sentences totalling sixty-six
days imprisonment for fine defaults resulting from
parking by-law contraventions in the city of
Toronto. Subsequent to the date of the Criminal
Code sentences, a further eight sentences totalling
nineteen days were imposed by a justice of the
peace, also in respect of fine defaults. While the
appellant was in the penitentiary serving his
Criminal Code sentences, a police officer attempt
ed to execute the thirty-two warrants of committal
arising from these fine defaults but the officials at
the penitentiary refused to accept them. The
appellant then brought these proceedings in the
Trial Division for a declaration that he is entitled
to have the unexecuted provincial warrants
received by the penitentiary officials so that he
might serve his provincial sentences there. He also
seeks a declaration that he is entitled to have his
provincial sentences served concurrently with his
Criminal Code sentences. It is from the dismissal
of his action by the Trial Division that the present
appeal is brought.
I start from the proposition, which I believe to
be self-evident, that the criminal justice system in
each province of Canada is fundamentally unitary.
While both levels of government can create
offences and prescribe punishments, we do not, as
some countries do, have separate and distinct fed
eral and provincial systems of police, prosecutors,
courts and prisons, operating in parallel. Federal
crimes are frequently, indeed usually, investigated
by provincial police (or, which is the same thing,
federal police under contract to the province) and
their prosecution is usually under the direction of
provincial attorneys general. The courts of crimi
nal jurisdiction are invariably of provincial crea
tion, although some are presided over by judges
who are federally appointed. Pre-sentence reports
are prepared, and probation orders supervised, by
provincial probation officers. Provincial prisons are
filled with persons serving sentences for federal
crimes. When released on parole or mandatory
supervision, they are supervised by federal parole
officers.
The Constitution divides jurisdiction over cor
rections much as it does over courts, that is to say
horizontally rather than vertically. Head 28 of
section 91 allows Parliament to legislate with
respect to "Penitentiaries". Head 6 of section 92
gives the provinces power over "Public and Refor
matory Prisons".
There is no indication as to how one is to
distinguish between a prison and a penitentiary.
The Shorter Oxford Dictionary defines a peniten
tiary as
"a reformatory prison; a house of correction".
If that definition were taken at its face value, it
would support the view that in Canada we have
parallel criminal justice or, at any event, correc
tional systems. If that were so, of course, Parlia
ment could not order that persons convicted of
federal crimes should be committed to provincial
prisons. I have already indicated that that is not
the case. Indeed, Parliament's power to provide for
punishment of federal crimes by imprisonment in
provincial institutions was early established: see In
re New Brunswick Penitentiary (1880), [1875-
1906] Cout. S.C. 24.
Only history can tell us what the framers of the
British North America Act, 1867 had in mind in
1867 when they spoke of penitentiaries. It is is not
difficult to find that history. It demonstrates that,
from as early as 1842, the Province of Canada had
established a penitentiary. [An Act for better pro
portioning the punishment to the offence, in cer-
tain cases, and for purposes therein mentioned,
S.C. 1842], c. 5, provides, in section III, that for
any offence for which
[III.] ... the offender may on conviction be punished by
imprisonment for such term as the Court shall award, or for
any term exceeding two years, such imprisonment, if awarded
for a longer term than two years, shall be in the Provincial
Penitentiary.
The nearest thing to a definition of a penitentia
ry in the pre-Confederation period appears in a
statute of 1851 ([An Act for the better Manage
ment of the Provincial Penitentiary, S.C. 1851],
c. 2, section II):
II. ... That the said Provincial Penitentiary shall be main
tained as a Prison for the confinement and reformation of
persons, male and female, lawfully convicted of crime before
the duly authorized legal Tribunals of this Province, and sen
tenced to confinement therein, for a term not less than two
years; and whenever any offender convicted after this Act shall
come into effect, shall be punishable by imprisonment, such
imprisonment shall, if it be for two years or any longer term, be
in the Provincial Penitentiary ... .
Substantially the same words appear immedi
ately after Confederation in a statute of 1869 ([An
Act respecting Procedure in Criminal Cases, and
other matters relating to Criminal Law, S.C.
1869], c. 29, section 96):
96. Each of the Penitentiaries in Canada shall be maintained
as a Prison for the confinement and reformation of persons,
male and female, lawfully convicted of crime before the Courts
of Criminal Jurisdiction of that Province for which it is
appointed to be the Penitentiary, and sentenced to confinement
for life or for a term not less than two years; and whenever any
offender is punishable by imprisonment, such imprisonment, if
it be for life or for two years or any longer term, shall be in the
Penitentiary ....
Thus, at the time of the passage of the British
North America Act, 1867, a penitentiary was
understood to be a prison to which persons serving
sentences of two years or more were sent. The
length of the sentence was the sole distinguishing
feature; neither the nature of the institution nor
the character of the crimes for which the sentence
was awarded played any role in the determination
of who should go to a penitentiary.
It is against that background that Parliament
has enacted section 659 of the Criminal Code. It
provides as follows:
659. (1) Except where otherwise provided, a person who is
sentenced to imprisonment for
(a) life,
(b) a term of two years or more, or
(c) two or more terms of less than two years each that are to
be served one after the other and that, in the aggregate,
amount to two years or more,
shall be sentenced to imprisonment in a penitentiary.
(2) Where a person who is sentenced to imprisonment in a
penitentiary is, before the expiration of that sentence, sentenced
to imprisonment for a term of less than two years, he shall be
- sentenced to and shall serve that term in a penitentiary, but if
the previous sentence of imprisonment in a penitentiary is set
aside, he shall serve that term in accordance with subsection
(3).
(3) A person who is sentenced to imprisonment and who is
not required to be sentenced as provided in subsection (1) or
(2) shall, unless a special prison is prescribed by law, be
sentenced to imprisonment in a prison or other place of confine
ment within the province in which he is convicted, other than a
penitentiary, in which the sentence of imprisonment may be
lawfully executed.
(4) Where a person is sentenced to imprisonment in a
penitentiary while he is lawfully imprisoned in a place other
that a penitentiary he shall, except where otherwise provided,
be sent immediately to the penitentiary and shall serve in the
penitentiary the unexpired portion of the term of imprisonment
that he was serving when he was sentenced to the penitentiary
as well as the term of imprisonment for which he was sentenced
to the penitentiary.
(5) Where, at any time, a person who is imprisoned in a
prison or place of confinement other than a penitentiary is
subject to two or more terms of imprisonment, each of which is
for less than two years, that are to be served one after the other,
and the aggregate of the unexpired portions of those terms at
that time amounts to two years or more, he shall be transferred
to a penitentiary to serve those terms; but if any one or more of
such terms is set aside and the unexpired portions of the
remaining term or terms on the day on which he was trans
ferred under this section amounted to less than two years, he
shall serve that term or terms in accordance with subsection
(3).
(6) For the purposes of this section, where a person is
sentenced to imprisonment for a definite term and an indeter
minate period thereafter, such sentence shall be deemed to be
for a term of less than two years and only the definite term
thereof shall be taken into account in determining whether he is
required to be sentenced to imprisonment in a penitentiary or to
be committed or transferred to a penitentiary under subsection
(5).
(6.1) Where, either before or after the coming into force of
this subsection, a person has been sentenced, committed or
transferred to a penitentiary, otherwise than pursuant to an
agreement made under subsection 15(1) of the Penitentiary
Act, any indeterminate portion of his sentence shall, for all
purposes, be deemed not to have been imposed.
(7) For the purposes of subsection (3) "penitentiary" does
not, until a day to be fixed by proclamation of the Governor in
Council, include the penitentiary mentioned in section 82 of the
Penitentiary Act, chapter 206 of the Revised Statutes of
Canada, 1952.
As a matter of straightforward statutory inter
pretation and absent any questions of vires arising
from the distribution of legislative powers under
our federal system of government, I would have
thought that it was clear that the foregoing provi
sions applied squarely to the facts of the appel
lant's case. In particular, the plain wording of
subsection 659(2) would seem to govern the case.
The appellant is a person "sentenced to imprison
ment in a penitentiary"; "before the expiration of
that sentence", he has been "sentenced to impris
onment for a term of less than two years". The
subsection requires that he "shall serve that term
in a penitentiary".
There is nothing in subsection 659(2) to indicate
that it is limited in its reach to sentences imposed
for breach of federal statutes. Furthermore, when
it is read against the historical and constitutional
background which I have attempted to sketch
above, it seems to me that it cannot be so limited.
Indeed to do so on the grounds of a perceived
absence of federal legislative power to deal with
persons who are serving provincial as well as feder
al sentences leads to the most astonishing results.
If the appellant cannot serve his provincial sen
tences in the penitentiary (I leave aside for the
moment the question whether he can do so concur
rently with his Criminal Code sentences), he will,
upon his release from the penitentiary on parole or
mandatory supervision, be subject to immediate
rearrest. He could then presumably be conveyed to
a provincial prison. The result, as it seems to me,
would be the frustration and indeed the negation
of the whole federal system of parole and manda
tory supervision.
If, of course, subsection 659(2) does not envis
age provincial offences, then presumably the same
is true of subsection 659(4). It will be recalled that
some of appellant's provincial sentences were
imposed prior to the date of his Criminal Code
sentences although none of the warrants were exe
cuted before that date. Suppose some of them had
been executed, so that the appellant, while under-
going trial, was at the same time serving his
provincial sentences. What would then happen
upon the imposition of his Criminal Code sen
tences if subsection 659(4) was not applicable?
Would the provincial authorities refuse to transfer
him to the penitentiary until they had finished
with him? If they did not refuse, would the unex-
pired portion of his provincial sentences then be in
a sort of limbo until such time as his Criminal
Code sentences had been served, subject to being
revived many years later upon his release from the
penitentiary? The record does not reveal whether
the appellant was on remand prior to his trial and
conviction for the Criminal Code offences. Such
pretrial detention is, of course, authorised under
Part XIV of the Criminal Code. Would such
detention also have the effect of suspending any
provincial sentences which the appellant might
then be serving?
The foregoing questions illustrate what is to me
a fundamental flaw in giving a restrictive interpre
tation to the scope of section 659: the fate of
persons such as the appellant who are subject to
both federal and provincial sentences will be deter
mined either by hazard or, what is worse, by
arbitrary authority. The cases of Bedard v. Direc-
teur du Centre de Détention de Montréal (Québec
S.C., unreported decision of November 2, 1983,
File No. 500-36-525-835) and Durand c. Forget
(1980), 24 C.R. (3d) 119 (Que. S.C.) are good
examples. This case is another.
To arrive at such results by a reading of a
constitutional division of legislative power which is
not imposed by the very words of the Constitution
Act and is indeed contrary to the historical prac
tice is, I believe, unjustified. In my opinion, Parlia
ment's power to legislate with respect to penitenti
aries must include the power to define what is a
penitentiary. 6 Such definition has, since earliest
times, been in terms of the length of the sentence
to be served without regard to the legislative
source under which it was imposed.
Furthermore, the federal definition of a peniten
tiary is not incompatible with the applicable
Ontario provincial legislation. Section 23 of the
Interpretation Act, R.S.O. 1980, c. 219, reads:
23. If in an Act a person is directed to be imprisoned or
committed to prison, the imprisonment or committal shall, if no
other place is mentioned or provided by law, be in or to the
correctional institution of the locality in which the order for the
imprisonment is made or, if there be no correctional institution
there, then in or to the correctional institution that is nearest to
such locality. (Emphasis added.)
I can see no reason why the underlined words
are not apt to envisage valid federal legislation
requiring certain sentences to be served in a
penitentiary.
In this respect, the present case differs markedly
from those dealing with the right of the federal
power to appoint prosecuting authorities in certain
cases (R. v. Hauser, [1979] 1 S.C.R. 984; Attor
ney General of Canada v. Canadian National
Transportation, Ltd. et al., [1983] 2 S.C.R. 206).
There, the impugned federal legislation, which was
ultimately held to be valid, sought to introduce a
degree of parallelism into a criminal justice system
which I have previously described as fundamental
ly unitary. Here, the federal and provincial legisla
tion are not in conflict and the former, on its plain
reading, supports the unitary view. While in no
way determinative of the constitutional issue, it is
6 See Canadian Pioneer Management Ltd. et al. v. Labour
Relations Board of Saskatchewan et al., [1980] 1 S.C.R. 433,
at page 469:
Legislative jurisdiction involves certain powers of defini
tion which are not unlimited but which, depending on the
particular manner in which they are exercised, may affect
other jurisdictional fields.
For instance, Parliament has exclusive legislative jurisdic
tion over the Establishment, Maintenance, and Management
of Penitentiaries under s. 91.28 of the Constitution, and each
Province has exclusive legislative jurisdiction over the Estab
lishment, Maintenance and Management of Public and
Reformatory Prisons in and for the Province, under s. 92.6.
At present, the line of demarcation between the two appears
to depend in part upon federal legislation such as s. 659 of
the Criminal Code.
at least interesting that, although duly notified
under Rule 1101 [Federal Court Rules, C.R.C., c.
663], no provincial Attorney General has appeared
to suggest that the federal legislation is ultra vires.
Finally, with respect to this aspect of the matter
I would observe that there is no reported case that
I know of or that the parties were able to cite
which holds that federal legislation regarding
admission to penitentiaries is limited to legislation
concerning persons who are exclusively serving
sentences for breaches of federal law. I do, how
ever, find support for the view I have taken in
Hogg, P.W., Constitutional Law of Canada,
Second Edition, 1985, at page 435:
It is possible for a conviction under provincial law to lead to a
sentence in a federal penitentiary, but it is unusual for a
provincial statute to authorize a sentence as long as two years
and very unusual for such a sentence actually to be imposed.
I conclude, for the foregoing reasons, that the
appellant is entitled to serve his sentences of
imprisonment for provincial fine defaults in the
penitentiary. Nothing in the applicable legislation
or in the Constitution Act itself authorised the
officials in charge of that type of prison called a
penitentiary to refuse to accept valid judicial war
rants of committal which competent provincial
authorities sought to deliver to them with respect
to a person already lawfully in their custody.
There remains for decision the appellant's
request that his provincial sentences be served
concurrently with his federal sentences. This is a
question of the calculation of sentence time and
not of the definition of who shall serve time in a
penitentiary. It is accordingly, in my view, exclu
sively a matter for the provincial legislature which
has created the offences and provided for the
punishment. In Ontario, the rule with respect to
multiple sentences is that they shall be consecutive
unless otherwise ordered. Section 65 of the Pro
vincial Offences Act, R.S.O. 1980, c. 400, reads as
follows:
65. Where a person is subject to more than one term of
imprisonment at the same time, the terms shall be served
consecutively except in so far as the court has ordered a term to
be served concurrently with any other term of imprisonment.
I can see no reason why this section should not be
given its full effect in the appellant's case.
I would allow the appeal, set aside the judgment
appealed from and declare that the appellant is
entitled to have unexecuted warrants of committal
issued under provincial law received by the Cor
rectional Service of Canada and duly executed and
to serve all sentences therefor consecutively to the
sentences that he is presently serving under the
Criminal Code.
I would allow the appellant his costs throughout.
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.