In re Frank David Ellis
Trial Division, Collier J.—Ottawa, October 12
and 13, 1972.
Imprisonment—Penitentiaries—Sentence of two years less
one day definite plus six months indeterminate—Subsequent
sentence of two years—Whether indeterminate term to be
included in calculating release date—Criminal Code, s.
659(6).
In April 1971 E was sentenced to two years less one day
definite and six months indeterminate on several charges, to
be served concurrently. On June 18, 1971, he was sen
tenced for another offence to two years in a penitentiary to
be served concurrently with the previous imprisonment
imposed.
Held, since E was not imprisoned in the penitentiary by
reason of the earlier sentence, section 659(6) of the Crimi
nal Code did not apply to require that the indeterminate
portion of the earlier sentence should be deemed not to be
imposed; and accordingly the indeterminate sentence must
be included in calculating his release date.
Re Weston [1972] 1 O.R. 342; Sedore v. Com'r of
Penitentiaries [1972] F.C. 898, followed.
APPLICATION for declaratory relief.
A. C. Pennington for Penitentiary Service.
K. Cartwright for Frank David Ellis.
COLLIER J.—This proceeding was com
menced by motion requesting a writ of man-
damus issue to the records department of the
Canadian Penitentiary Service at Collin's Bay
Penitentiary requiring the amendment of the
records in respect to the release date from that
penitentiary of the applicant, Frank David Ellis.
In order to avoid technicalities, and to ensure
the matter would be decided on the merits, the
Crown consented to an amendment of the
motion substituting the Commissioner of Peni
tentiaries in place of the Penitentiary Service as
respondent to the motion, and treating the
application for mandamus as an application for
the grant of "declaratory relief" as those words
are used in section 18 of the Federal Court Act.
On April 13, 1971, the applicant was sen
tenced in respect to several charges to two
years less a day definite plus six months
indeterminate on each charge, the sentences to
be concurrent. As a result of this, I understand
the applicant was then imprisoned in an Ontario
provincial institution rather than a penitentiary.
On June 18, 1971, in respect to some other
conviction, he was sentenced to two years in a
penitentiary, that sentence to be concurrent
with the one he was presently serving. The
applicant was then sent from the institution he
was in to the penitentiary where he presently is,
pursuant to section 659(4) of the Criminal
Code, R.S.C. 1970, c. C-34.
The applicant contends that in calculating his
release date, the 6 months indeterminate por
tion of the sentence imposed on April 13, 1971,
must be deleted and relies particularly on sec
tion 659(6) of the Code. The Penitentiary Serv
ice takes the opposite view. I set out the whole
of section 659.
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 serve that term in a peniten
tiary, but if the previous sentence of imprisonment in a
penitentiary is set aside, he shall serve that term in accord
ance 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
confinement within the province in which he is convicted,
other than a penitentiary, in which the sentence of imprison
ment 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 provid
ed, 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 transferred 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
indeterminate 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 deter
mining whether he is required to be sentenced to imprison
ment in a penitentiary or to be transferred to a penitentiary
under subsection (5); and where any such person is so
sentenced or transferred, the indeterminate portion of his
sentence shall, for all purposes, be deemed not to have been
imposed.
(7) . . .
Miss Cartwright for the applicant submits: (1)
As the Code is a penal statute it must be strictly
construed, and nowhere is there any authority
in it to convert indeterminate sentences into
determinate sentences as the Penitentiary Serv
ice is allegedly doing in this case. (2) When
section 659 is read as a whole, and when one
looks at the concluding words of subsection (6)
("... and where any such person is so sen
tenced or transferred, the indeterminate portion
of his sentence shall, for all purposes, be
deemed not to have been imposed"), it follows
that when a person ends up serving a sentence
in a penitentiary, the indeterminate portions of
a sentence are disregarded.
I think the two submissions are really one. If
on the true construction of the section, the 6
months indeterminate sentence is not caught by
the concluding words of subsection (6), then the
Penitentiary Service is not converting some
thing indeterminate into something fixed. It is
merely establishing the applicant's date of
release on the assumption he will in fact serve
the 6 months additional period. The applicant
may be granted parole for some part of that
period.
In my view, the second submission put for
ward has been ruled against in two earlier
cases: Re Weston [1972] 1 O.R. 342, Wilson J.
of the Ontario High Court and Sedore v. Com
missioner of Penitentiaries [1972] F.C. 898,
Kerr J. It is true I am technically not bound by
these decisions, but I would not depart from
them unless I were convinced the interpretation
given in those cases to section 659(6) was
wrong, or the cases were distinguishable on
their facts. I have considered the two judgments
referred to. I do not think their facts make them
distinguishable. I agree with their interpretation
of the subsection in question. In both cases the
applicants were prisoners who had initially
received sentences of less than two years defi
nite, with indeterminate sentences added. In the
Weston case the applicant was a short time
thereafter sentenced to two years for escaping
custody, and was then transferred to a peniten
tiary because of that sentence. In the Sedore
case, the applicant likewise was sentenced for
escaping custody, but the sentence was for nine
months consecutive at a penitentiary. I think
the fact that the sentences in those two cases
which resulted in the applicants being incar
cerated in a penitentiary were punishment for
escaping custody, is not material. The important
aspect is that both applicants were "sentenced
to imprisonment in a penitentiary".
That is what occurred here. The applicant, in
June 1971, was by virtue of section 659(1)
sentenced to imprisonment in a penitentiary,
even though the sentence was concurrent to the
previous sentence. That previous sentence of
April 13, 1971, was not one of imprisonment in
a penitentiary; the applicant did not get there by
reason of it. If he had reached the penitentiary
by reason of the April sentence, that is, he was
a "person ... so sentenced ...", the indetermi
nate portion of that sentence would be deemed
not to have been imposed.
The question of a transfer under subsection
(5) does not arise in this case.
In my opinion the intent of subsection (6) is
this. Where the courts have imposed sentences
which do not result in a person being "sen-
tenced to imprisonment in a penitentiary" but in
some way a person serves a sentence in a
penitentiary, then any indeterminate sentences
earlier imposed are deemed not to be imposed.
As I have said that is not the situation here.
The applicant's release date ought to be cal
culated by including the six months indetermi
nate period. While it is unclear from the rele
vant statutes as to which of the Ontario Parole
Board or the National Parole Board has juris
diction in respect to parole in the applicant's
case, I am told that as a matter of practice the
National Board handles cases of this kind.
The motion is dismissed, without 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.