T-1201-74
Phillip Cavanaugh (Plaintiff)
v.
Commissioner of Penitentiaries (Defendant)
Trial Division, Cattanach J.—Saskatoon, March
19; Ottawa, April 4, 1974.
Penitentiaries—Inmate seeking declaration of unlawful
confinement and an order for release— Court doubting juris
diction to give declaratory relief—Inmate completing terms
under sentence and warrant of committal—Certificate of
consecutive sentence valid authority for further committal—
Penitentiary Act, R.S.C. 1970, c. P-6, s. 13(7), Criminal
Code, R.S.C. 1970, c. C-34, s. 500(5)— Federal Court Act,
ss. 18, 28.
The plaintiff, sentenced to concurrent terms in penitentia
ry, entered that institution under warrant of committal and
served his sentence. He disputed his further custody for a
consecutive term, respecting an additional offence and
endorsed on the indictment by the sentencing judge as "one
year imprisonment to be served consecutively in a Provin
cial Gaol to term now being served". The sentencing judge
amended the indictment to substitute "Penitentiary" for
"Provincial Gaol". A new certificate of sentence was issued
by the Court to reflect this change. No warrant of committal
was issued. The plaintiff contended that this was mandatory
under the Criminal Code, section 500(5).
Held, the action is dismissed. The sentence of a com
petent Court was legal justification for imprisonment, and
the certificate of sentence, a document issued by the sen
tencing Court, identifying the accused and certifying that he
was convicted of a specified offence and sentenced to a
specified term of imprisonment was adequate authority for
the keeper of the penitentiary to detain the accused in
custody for the term of imprisonment imposed.
Goldhar v. The Queen [1960] S.C.R. 431 and In re
Darby [1964] S.C.R. 64, applied.
ACTION.
COUNSEL:
Peter v. Abrametz for plaintiff.
D. F. Friesen for defendant.
SOLICITORS:
Eggum & Dynna, Prince Albert, Saskatche-
wan, for plaintiff.
Deputy Attorney General of Canada for
defendant.
CATTANACH J.—By his statement of claim
plaintiff seeks a declaration directed to the
defendant herein to the effect that the plaintiff
is being unlawfully held in custody by the
defendant in the Saskatchewan Penitentiary at
Prince Albert, Saskatchewan and that the plain
tiff be released immediately.
The plaintiff is presently an inmate of the
above mentioned penitentiary.
On January 20, 1972 in Thunder Bay,
Ontario, the plaintiff was tried and convicted on
a charge of breaking and entering and on a
charge of wounding with intent. On that day the
plaintiff was duly sentenced to a term of two
years on each charge the terms to be served
concurrently.
An appropriate warrant of committal was
issued.
The plaintiff has now served the two year
sentence so imposed.
However, on May 2, 1972, the plaintiff was
tried and convicted on a charge of possession of
stolen goods before the District Court at North
Bay, Ontario and was sentenced to imprison
ment for a term of one year to be served con
secutively to the two year term previously
imposed.
It is clear from the material before me that
the presiding judge, His Honour F. L. Gratton,
originally intended that the one year sentence to
imprisonment imposed by him on May 2, 1972
should be served by the plaintiff in a provincial
gaol. He endorsed the indictment as follows:
Accused sentenced to one year imprisonment to be served
consecutively in a Provincial Gaol to term now being served.
A certificate of sentence, which is Exhibit
"A" to an agreed statement of facts, was given
under the hand of the Clerk of the Court and
under the seal of the Court on May 2, 1972.
That certificate recites that the accused, who is
the plaintiff herein, was duly convicted of the
offence of "possession" at a sitting of the Dis
trict Court for the District of Nipissing held at
North Bay, Ontario and was sentenced by His
Honour Judge F. L. Gratton to "one year
imprisonment to be served consecutively to
term now being served".
On December 8, 1972 in response to an
enquiry from the officials of the Saskatchewan
Penitentiary His Honour Judge Gratton amend
ed his endorsement on the indictment as quoted
above by deleting the words "Provincial Gaol"
and replacing them with the word "Penitenti-
ary".
A further certificate of sentence, Exhibit "B"
to the agreed statement of facts under the seal
of the Court and the hand of the Clerk of the
Court was issued in which this change was
reflected.
No warrant of committal was issued with
respect to the conviction and sentence of the
plaintiff on May 2, 1972.
The submission on behalf of the plaintiff is in
essence that the issuance of a warrant of com
mittal of a convicted accused is mandatory by
virtue of section 500(5) of the Criminal Code
which reads:
500. (5) Where an accused other than a corporation is
convicted, the judge or magistrate, as the case may be, shall
issue or cause to be issued a warrant of committal in Form
18, and section 461 applies in respect of a warrant of
committal issued under this subsection.
Form 18, referred to is in a schedule to the
statute and as such forms part thereof.
The form is directed to peace officers and the
keeper of a prison commanding the peace offi
cers in Her Majesty's name, to convey and
deliver a person accused, convicted and sen
tenced to the keeper of a prison and command
ing the keeper to receive the accused into cus
tody and imprison him for the duration of the
sentence. The form concludes with the words,
"and for so doing this is a sufficient warrant".
In view of the position taken on behalf of the
plaintiff that in the absence of a warrant of
committal he was being unlawfully detained in
custody the alternative claim for relief that the
defendant immediately transport the plaintiff to
a provincial gaol to serve the remainder of the
one year sentence of imprisonment was aban
doned as being inconsistent with the position so
taken and, at the request of counsel, the state
ment of claim was amended by deleting that
alternative claim.
In Goldhar v. The Queen' the Supreme Court
of Canada, on an appeal from the refusal of an
application for a writ of habeas corpus, con
sidered the matter of an accused held in a
penitentiary under a certificate of sentence
issued by the convicting Court. It was held that
the sentence of a competent Court is legal jus
tification for imprisonment and that a calendar
of convictions was a certificate regular on its
face for which reasons the application for the
writ was rightly dismissed.
The accused was convicted in the Court of
General Session of the Peace for the County of
York of conspiracy to traffic in drugs and was
sentenced to 12 years imprisonment.
The accused was detained in Kingston Peni
tentiary under a calendar of sentences. That
calendar was a certificate signed by the Deputy
Clerk of Peace, York and under the seal of the
Court certifying that the prisoner was convicted
of conspiracy to traffic in drugs and was sen
tenced on May 4, 1956 to 12 years imprison
ment. It was established that the calendar of
sentences was the only authority by which
Goldhar was detained in custody.
Kerwin Ci. quoted sections 49(1) and 51 of
the Penitentiaries Act, R.S.C. 1952, c. 206
which read:
49. (1) The sheriff or deputy sheriff of any county or
district, or any bailiff, constable, or other officer, or other
person, by his direction or by the direction of a court, or any
officer appointed by the Governor in Council and attached
to the staff of a penitentiary for that purpose, may convey
to the penitentiary named in the sentence, any convict
sentenced or liable to be imprisoned therein, and shall
deliver him to the warden thereof, without any further
warrant than a copy of the sentence taken from the minutes
' [1960] S.C.R. 431.
of the court before which the convict was tried, and certi
fied by a judge or by the clerk or acting clerk of such court.
51. The warden shall receive into the penitentiary every
convict legally certified to him as sentenced to imprison
ment therein, unless certified by the surgeon of the peniten
tiary to be suffering from a dangerously infectious or conta
gious disease, and shall there detain him, subject to the
rules, regulations and discipline thereof, until the term for
which he has been sentenced is completed, or until he is
otherwise legally discharged, but a convict, if certified by
the surgeon to be suffering in manner aforesaid, may remain
and be kept in his former custody until his condition in the
opinion of the surgeon justifies withdrawal of the certificate.
He said at page 435:
The Calendar is a certificate regular on its face that the
appellant was convicted by a court of competent criminal
jurisdiction and therefore it is impossible to go behind it on
an application for habeas corpus; Re Trepanier ((1885) 12
S.C.R. 111); Re Sproule ((1886), 12 S.C.R. 140); In re
Henderson ([1930] S.C.R. 45, 1 D.L.R. 420,52 C.C.C. 95).
The Supreme Court of Canada again con
sidered an application for a writ of habeas
corpus in In re Richard George Darby 2 . Cart-
wright J., as he then was, in speaking for the
Court said [at page 65]:
This is an application for a writ of habeas corpus ad
subjiciendum, originally made before Spence J. and referred
by him to the Court pursuant to Rule 72. The application is
made in writing and the applicant did not appear and was
not represented by counsel.
It appears from the certificate of sentence that the appli
cant was tried in the Supreme Court of British Columbia
before Hutcheson J. and a jury on the following counts:
(1) Theft of money from mail.
(2) Theft of watch from mail.
(3) Possession of money stolen from mail.
(4) Possession of watch stolen from mail.
that he was convicted on all four counts and, on February 1,
1963, was sentenced on each of counts (1) and (2) to four
years imprisonment in the penitentiary and on each of
counts (3) and (4) to two years imprisonment in the peniten
tiary, the four sentences to run concurrently.
It appears therefore that the applicant is confined pursu
ant to convictions made and sentences imposed by a Court
of competent criminal jurisdiction. The certificate of convic
tion is valid on its face. The reasons for judgment delivered
2 [1964] S.C.R. 64.
in this Court in Goldhar v. The Queen ([1960] S.C.R. 431)
and the authorities therein discussed, make it clear that in
these circumstances no relief can be afforded to the appli
cant by way of habeas corpus.
It follows that the application for a writ of habeas corpus
should be dismissed and I would so order.
Counsel for the plaintiff pointed out that in
the Goldhar case (supra) Kerwin CJ. specifical
ly referred to sections 49(1) and 51 of the
Penitentiaries Act, R.S.C. 1952, c. 206 which
are quoted above. In the interval a new Peniten
tiaries Act was passed by 1960-61 Statutes of
Canada, c. 53 which came into force on April 1,
1962. The new Act repealed the former Act but
it contained section 14(7) which reads,
14. (7) A person shall be deemed to be in lawful custody
anywhere in Canada if,
(a) having been sentenced or committed to penitentiary,
he is in the custody of a person acting under the authority
of the court that sentenced or committed him.
Section 14(7) of 1960-61 Statutes of Canada,
c. 53 is enacted verbatim in section 13(7) in the
Revised Statutes of Canada, 1970, c. P-6.
This is the legislation which was in effect
when Mr. Justice Cartwright decided In re Rich-
ard George Darby (supra) and in doing so he
stated that the reasons for judgment in Goldhar
v. The Queen (supra) were applicable.
The principle in the Goldhar case (supra)
applicable to the present matter was as
expressed by Kerwin CJ. in the passage I have
quoted above and by Fauteux J., as he then was,
where he said at page 439:
I agree with the view that the appellant has been convict
ed and sentenced by a Court of competent jurisdiction, that
the Calendar is a certificate regular on its face that the
appellant has been so convicted and sentenced and that,
with the material before him, Martland J. rightly dismissed
the application for a writ of habeas corpus.
The decision of Martland J. which was the
subject of appeal to the Supreme Court of
Canada is reported under the name In re Jack
Goldhar in [1958] S.C.R. at page 692.
After pointing out that the only document by
which Goldhar was detained in custody by the
keeper of the penitentiary was the document
entitled "Calendar of Sentences-Sessions" (and
no warrant of committal against the prisoner
was held by the keeper) which was contended to
be inadequate authority for the detention of the
prisoner, Martland J. then said at page 696:
It would seem to me that the document in issue [i.e.
Calendar of Sentences] does legally certify that the appli
cant is sentenced to imprisonment at Kingston Penitentiary
for a term of twelve years.
The authorities establish that on an application of this
kind I am not entitled to enter into the merits of the case,
but am limited to an inquiry into the cause of commitment
as disclosed by the documents which authorize the deten
tion. There is nothing disclosed in the document in question
to indicate that the commitment of the applicant to Kingston
Penitentiary was in any way irregular. [Brackets are mine.]
As I understand the purport of the foregoing
authorities it is that a document issued under
the seal of the appropriate Court having juris
diction in the matter and signed by an appropri
ate official of that Court identifying the accused
and certifying that he was convicted of a speci
fied offence and was sentenced to a specified
term of imprisonment is adequate authority for
the keeper of the penitentiary to detain the
accused in custody for the term of imprison
ment imposed.
In my view if the document in question em
bodies those essentials it is immaterial what title
it bears. In the Goldhar case (supra) the docu
ment was entitled "Calendar of Sentences" but
was referred to also as a Certificate of Sen
tence. In In re Richard George Darby (supra)
Mr. Justice Cartwright referred to the document
under which the accused in that case was
detained as a "Certificate of Sentence" and also
as a "Certificate of Conviction". Such titles
have been used interchangeably.
I am mindful of the fact that in the Goldhar
case (supra) and in In re Darby (supra) those
matters came before the Court by way of an
application for a writ of habeas corpus whereas
the present matter is before me by statement of
claim seeking declaratory relief by virtue of
section 18(a) of the Federal Court Act. When
the substance of the relief sought by the state-
ment of claim herein is considered it is identical
to that obtainable by an application for a writ of
habeas corpus. In my view therefore In re
Darby is binding authority that the plaintiff
herein is not entitled to any of the relief sought
in his statement of claim.
In section 18 of the Federal Court Act the
Trial Division has not been given jurisdiction to
issue a writ of habeas corpus. That being so and
bearing in mind that the declaratory relief
sought in the statement of claim is tantamount
to an application for a writ of habeas corpus, I
entertained doubt if I had jurisdiction to hear
this matter but in view of the conclusion I have
reached for the reasons expressed that the
plaintiff is not entitled to the relief sought in the
statement of claim, it is not necessary for me to
decide that question nor do I purport to do so.
Counsel for the defendant stated that he had
been instructed not to ask for costs and accord
ingly moved to amend the statement of defence
by deleting the words, "and the defendant is
entitled to costs" which motion was granted.
It follows that the plaintiff's claim is dis
missed and that there shall be no order as to
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.