Darryle Reed Sedore (Plaintiff)
v.
The Commissioner of Penitentiaries and The
Superintendent of Collin's Bay Penitentiary
(Defendants)
Trial Division, Kerr J.—Toronto, May 9;
Ottawa, June 15, 1972.
Imprisonment—Penitentiaries—Prisoner sentenced to pen
itentiary for escaping arrest—Whether indefinite sentence for
previous offence deemed not imposed—Criminal Code, s.
659(5) and (6).
On September 22, 1971, S was convicted of robbery and
sentenced to imprisonment for two years less one day
definite and two years less one day indefinite. On October
26, 1971, he was convicted of escaping from custody and
sentenced to nine months consecutive in Kingston Peniten
tiary. On the same day he was convicted of resisting arrest
and sentenced to six months consecutive. He was incar
cerated in the penitentiary and sought a declaration that in
virtue of section 659(6) of the Criminal Code the indefinite
portion of his sentence for robbery should be deemed not to
have been imposed.
Held, dismissing his application, since S had not been
transferred to the penitentiary pursuant to section 137 of
the Criminal Code section 659(5) and (6) did not apply.
Re Weston [1972] 1 O.R. 342; Ex Parte Simoneau
[1971] 2 O.R. 561, referred to.
MOTION for declaratory relief.
M. J. Bernstein for plaintiff.
T. W. Caskie for defendants.
KERR J.—This is an application by notice of
motion on behalf of the plaintiff for an order
granting declaratory relief to the effect that the
plaintiff is serving a sentence of a term of three
years, two months and twenty-seven days from
the 22nd day of September, 1971, and that the
indefinite portion of his sentence of robbery
dated September 22, 1971, shall be deemed not
to have been imposed. In short, what the plain
tiff seeks is to have an indeterminate sentence
of two years less one day deleted.
Section 18 of the Federal Court Act is as
follows:
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of
prohibition, writ of mandamus or writ of quo warranto,
or grant declaratory relief, against any federal board,
commission or other tribunal; and
(b) to hear and determine any application or other pro
ceeding for relief in the nature of relief contemplated by
paragraph (a), including any proceeding brought against
the Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
Rule 603 allows an application under section
18 of the Act to be brought by motion.
An affidavit of the plaintiff filed in support of
his application shows:
(1) On September 22, 1971, the plaintiff was
convicted of the offence of robbery by Provin
cial Judge H. D. Foster in Toronto and sen
tenced to a term of imprisonment of two years
less one day definite and two years less one day
indeterminate;
(2) On October 26, 1971, he was convicted
of escaping from lawful custody from the Bur-
wash Correctional Centre and was sentenced to
a term of nine months consecutive at Kingston
Penitentiary. On the same date he was convict
ed of the offence of assault with intent to resist
lawful arrest and was sentenced to a term of six
months consecutive;
(3) On December 8, 1971, he was convicted
of the offence of break and enter and was
sentenced to a term of one year to be concur
rent to any sentence being presently served;
(4) Pursuant to the said convictions he is
incarcerated in Collin's Bay Penitentiary; and
(5) In answer to an inquiry from his solicitor
the Canadian Penitentiary Service advised by
letter dated March 14, 1972, as follows:
This inmate is now serving a single term sentence of 5
years, 2 months and 28 days from 22 Sep 71 (1916 days).
Attached are photocopies of the four Warrants of Commit
tal as you have requested in your letter.
The indefinite portion of the sentence of Robbery dated
22 Sep 71 must be served as a result of the sentence of 9
months consecutive for Escape Lawful Custody dated 26
Oct 71. This is in accordance with a legal ruling by our
Legal Department.
Sections 137 and 659 of the Criminal Code,
R.S.C. 1970, c. C-34, are relevant and read as
follows:
137. (1) A person who escapes while undergoing impris
onment is, after undergoing any punishment to which he is
sentenced for that escape, required to serve the portion of
his term that he had not served at the time of his escape.
(2) For the purposes of subsection (1), the portion of a
person's term that he had not served at the time of his
escape shall be served
(a) in the prison from which the escape was made, if
imprisonment for the escape is not awarded; or
(b) in the prison to which he is sentenced for the escape,
if imprisonment for the escape is awarded.
(3) Where a person is sentenced to imprisonment for an
escape he may, for the purposes of this section, be sen
tenced to imprisonment in a penitentiary or in the prison
from which the escape was made, whether the imprison
ment is for less than two years or for two years or more.
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.
What the plaintiff seeks is a declaratory order
for amendment of the Penitentiary records to
delete the indeterminate sentence of two years
less one day imposed on September 22, 1971.
His counsel submitted that by virtue of section
659(6), above, the indeterminate portion of his
sentence is deemed not to have been imposed.
Counsel for the defendants submitted that sec
tion 659(6) does not apply to the plaintiff,
because he was sentenced under section 137(3)
to imprisonment in a penitentiary and he got to
the penitentiary by reason of such sentence and
not as a result of the operation of section 659;
that by virtue of section 137(1) the plaintiff is
required to serve the remainder of his sentences
that he had not served prior to his escape after
undergoing the punishment to which he was
sentenced for that escape; and that the plaintiff
having been sentenced to a penitentiary pursu
ant to section 137(1) and (3) was not trans
ferred to a penitentiary within the terms of
section 659(5) nor was he "so sentenced or
transferred" within the terms of section 659(6).
Sections 137 and 659 were considered in Re
Weston [1972] 1 O.R. 342, and Wilson J., after
reciting sentences imposed on the accused as
follows (at p. 343):
The applicant, who was born on August 27, 1949, was
sentenced on December 3, 1969, to nine months indetermi
nate for a breach of probation. At that time she was on
probation for two years for armed robbery. On February
19, 1970, she was sentenced to 12 months, consecutive,
indeterminate, for trafficking in a controlled drug. On
March 24, 1970, she was sentenced to two years definite
for escaping from the lawful custody of a provincial institu
tion. On March 26, 1970, she was transferred to Kingston
penitentiary and sent to the Prison for Women at Kingston.
On April 27, 1970, she was sentenced to two years consecu
tive for breaking, entering and theft. This was for an
offence that had taken place some time previously.
said at pages 343-44:
The applicant's contention is that under the provisions of
the Criminal Code, 1953-54, c. 51, s. 634(5) and (6) (rep. &
sub. 1968-69, c. 38, s. 74(2) (now R.S.C. 1970, c. C-34, s.
659), she is entitled to have the indeterminate portions of
her sentence struck from her record and that she should
serve only the definite portions of the terms of imprison
ment which have been imposed upon her.
It is my view that s-s. (5) did not come into effect in so
far as this young woman is concerned, primarily because
she was not transferred to Kingston Penitentiary from a
provincial institution under the terms of s-s. (5). She was
sent there as a result of the penalty of two years' imprison
ment which was imposed upon her for escape from the
place where she was serving her sentence in a provincial
institution. This would require her imprisonment in a
penitentiary.
Moreover, s-s. (6) does not apply to this case because at
the time she escaped she was serving a nine-month indeter
minate sentence and she was under sentence of 12 months
indeterminate for trafficking in a controlled drug. The com
bined periods of nine months indeterminate for which she
was sentenced on December 3, 1969, and the 12 months
under the penalty imposed on February 19, 1970, do not
total in the aggregate to two years or more: see s-s. (1).
However, if she were entitled to consideration under s-s.
(6), she is then subject to the provisions of s. 129 (now s.
137) of the Criminal Code. On March 24, 1970, she was
sentenced for unlawful escape under s. 125 (now s. 133) of
the Criminal Code. It is my view that s. 129(1) is particular
ly applicable in this case. It is intended to be a deterrent
against escaping from custody.
In Ex Parte Simoneau [1971] 2 O.R. 561, the
Court of Appeal dealt with a case in which the
respondent was convicted of an offence while
on parole and was sentenced to another term of
two years less one day definite and six months
indeterminate, whereupon his parole was for
feited and he was recommitted to penitentiary
pursuant to the Parole Act to serve both terms.
When he completed his definite term he brought
an action for release from the penitentiary on
the ground that by virtue of section 634(6), now
section 659(6) of the Criminal Code, the
indeterminate portion of his sentence is deemed
not to have been imposed. The Court held that
he was neither sentenced to the penitentiary nor
transferred there pursuant to section 634, but
was undergoing a term of imprisonment pursu
ant to the Parole Act, and consequently section
634(6) did not apply. Jessup J. said, at page
567:
"So sentenced" in the concluding part of the said subsec
tion must mean either "... sentenced to imprisonment for a
definite term and an indeterminate period thereafter ...", as
expressed earlier in the subsection, or sentenced pursuant
to s. 634, as amended, i.e., pursuant to s-s. (1) of s. 634.
"So transferred" in s. 634(6) of the Criminal Code, as
amended, must mean transferred pursuant to s-s. (5) of s.
634. But the respondent has never been "... subject to two
or more terms of imprisonment ..." in the words of that
subsection, ".. . that are to be served one after the other
.". He did not receive a consecutive sentence on July 5,
1968, and, as mentioned, he is subject to a single term of
imprisonment provided by s. 17(1) of the Parole Act, as
amended.
It is my view that section 137 is a special
provision, intended to be a deterrent against
escaping from custody, that is particularly
applicable in this case; that section 659(6),
expressly stated to be for the purposes of the
section, must be read in that context; and that
the plaintiff is not a person "so sentenced or
transferred" within the meaning of those words
as used in section 659(6). Consequently the
indeterminate portion of his sentence is not
deemed not to have been imposed.
The application for the declaration sought by
the plaintiff is dismissed.
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.