Judgments

Decision Information

Decision Content

T-1477-75
Claude Godon (Petitioner) v.
Canadian Penitentiary Service and the Queen (Respondents)
Trial Division, Walsh J.—Montreal, May 12 and 30, 1975.
Prisoner escaping—Whether sentence for escape served con currently with existing sentences—Criminal Code, S.C. 1953- 54, c. 51, ss. 129(1), 621(4); R.S.C. 1970 c. C-34, ss. 137(1), 645(4) as am.—Federal Court Rule 603.
When a prisoner is sentenced for escape, the penalty for the escape is served first: the unserved portion of the sentence must then be served. The sentences are, therefore, consecutive.
PETITION. COUNSEL:
A. Denis for petitioner.
J. B. Belhumeur for respondents.
SOLICITORS:
Vian, Bélanger, Hébert, Mailloux, Beaure- gard, Paquet and Pinard, Montreal, for petitioner.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment rendered in English by
WALSH J.: This is a petition for a declaratory judgment whereby petitioner seeks a declaration that the sentence pronounced by the Honourable Judge A. Cloutier the 1st of March 1966 against petitioner was concurrent with the penalty already served by him. The petition was supported by an affidavit by petitioner's attorney with a copy of an extract of the proceedings in the Court of Sessions in Montreal, in which the sentence pronounced reads:
[TRANSLATION] Two years in the penitentiary dating from this date.
The charge to which petitioner pleaded guilty was that:
[TRANSLATION] On or about the 26th day of January 1966 Claude Godon did illegally escape from a legal guardian of the
Leclerc Institute, thereby committing a criminal act contrary to section 125w of the Criminal Code.
This section of the Code in effect at that time dealt with escapes.
While counsel for respondents queried the procedure of seeking declaratory relief by a peti tion rather than an action, in view of the provisions of Rule 603, especially since the Queen is repre sented by the Attorney General of Canada, he stated that he did not insist on this and was satisfied that the Court should deal with the merits of the petition, and I am of the view that, since petitioner would allegedly already be eligible for release on parole, according to his attorney, with respect to his original sentence had the sentence rendered by the late Judge Cloutier not been interpreted as having the effect of a consecutive rather than a concurrent sentence, the matter is urgent and should be dealt with promptly without further delays which would be the result of proce dural objections to the form of the proceedings.
The affidavit submitted states that the late Judge Cloutier clearly indicated after representa tions made to him that the sentence should be served concurrently with the other sentences he was serving at the time as he wished to show clemency to him. I am of the view that such hearsay evidence attributing certain statements to the late Judge Cloutier at the time he rendered sentence are not admissible and that the written sentence speaks for itself and must be interpreted. It may well be that it was his intention that the sentence should run concurrently when he stated that it was to take effect "... dating from this date" since petitioner had, according to his coun sel, a much longer period than 2 years remaining to serve of his original sentence.
The real question is whether the sentence ren dered by the late Judge Cloutier had this effect, or even if it was possible for him to render a sentence on a charge of escape which could run concurrent ly with the previous sentence. Section 645(4) of the Criminal Code (section 621(4) of the Criminal Code in effect at the time,-2-3 Elizabeth II c. 51) sets forth the general rule that the court in impos ing a second sentence
... may direct that the terms of imprisonment shall be served one after the other.
In other words unless the court so provides, the sentences shall be concurrent. Section 137(1) (sec- tion 129(1) of the Code in effect at the time, and worded differently, which differences however do not affect the present issue) provides that
137. (1) Except when otherwise provided by the Parole Act a person who escapes while undergoing imprisonment shall, after undergoing any punishment to which he is sentenced for that escape, serve the portion of the term of imprisonment that he was serving, including statutory remission but not including earned remission, at the time of his escape that he had not then served minus any time that he spent in custody between the date on which he was apprehended after his escape and the date on which he was sentenced for that escape.
It appears to me that the words "after undergo ing any punishment to which he is sentenced for that escape" indicate clearly that after he is returned to the penitentiary he must then serve his sentence for his escape, following which the remainder of the original sentence is then served.
In other words, the sentence for escape is not served consecutively to the original sentence, but the converse is true. The result of course is the same, but I cannot find that a court, even if it intended to make the sentence for escape run concurrently with the original sentence can do so in view of the express wording of section 137(1) (or section 129(1) in effect in 1966) which simply read:
129. (1) A person who escapes while undergoing imprison ment 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.
Petitioner's counsel contends that if the late Judge Cloutier, by intending to impose a concur rent sentence, was not following the law, the Crown should have appealed at that time, and that another court cannot now find that his sentence was erroneous. I think this argument misses the point. The sentence as it reads is not erroneous or contrary to the law. It merely imposed a 2 year sentence from the date of its imposition. The consequences of this were that by virtue of section 129(1) it immediately began to be served, and when it expired, the remainder of petitioner's original sentence then took effect. There was no error in the sentence and nothing for the Crown to
appeal. The issue is not whether petitioner, his attorney and even perhaps the late Judge Cloutier thought the sentence would be concurrent (although there is nothing in any event to indicate that the late Judge Cloutier so intended save for the inadmissible evidence already referred to), but what are the actual legal consequences of the sentence he did render.
I am reinforced in my conclusion by the com mentary of Judge Irénée Lagarde in his Droit Pénal Canadien 2nd ed. Vol. I commenting on s. 137 he states [at page 273]:
[TRANSLATION] When the fugitive is condemned to a penalty for his escape, this penalty is first served, then he must— afterwards—serve the unserved portion of his sentence. These are therefore consecutive sentences [645(4)].
I have no choice therefore but to - dismiss peti tioner's petition with costs, if respondents insist on same.
ORDER
Petition dismissed with costs if respondents insist on same.
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