T-5699-80
Robert Maclntyre (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Cattanach J.—Ottawa, October 26
and November 10, 1981.
Parole — Application for declaration that plaintiff is en
titled to be released from prison according to his calculation
— Plaintiff disputes the calculations of the unexpired terms of
his imprisonment — Plaintiff was sentenced several times
prior to his escape from imprisonment in 1976 — After he was
apprehended, he was sentenced to nine years consecutive to any
sentence then being served for offences committed while he was
at large — Subsequently he was sentenced to four months for
being unlawfully at large — Plaintiff contends that he is
entitled to a maximum remission of one-third of the total
amount of his sentence which should be taken to be the sum of
all sentences from the date that he was first sentenced —
Defendant contends that s. 137 of the Criminal Code provides
for the imposition of a new sentence on an escapee which
blends with the remnant of the sentence the inmate was serving
when he escaped and that blend constitutes a single sentence —
Action dismissed — Penitentiary Act, R.S.C. 1970, c. P-6, s.
24.2 — Parole Act, R.S.C. 1970, c. P-2, s. 14 — Criminal
Code, R.S.C. 1970, c. C-34, s. 137.
The plaintiff disputes the calculations of the unexpired terms
of his imprisonment. After being sentenced, paroled and recom-
mitted, the plaintiff was sentenced in 1973 to two years con
secutive to the unexpired portion of any term for which parole
was granted. The plaintiff escaped in 1976 and after he was
apprehended was sentenced to nine years consecutive to any
sentence then being served. He was later sentenced to four
months for being unlawfully at large. Section 24.2 of the
Penitentiary Act ensures that an inmate would not earn remis
sion greater than one-third of the sentence he is serving.
Section 14 of the Parole Act indicates that all sentences
imposed are deemed to constitute one sentence for the term of
the total of the separate sentences imposed on a person. The
plaintiff contended that for the purposes of remission, his
sentence must be taken as beginning on July 6, 1971 when he
was first sentenced and he then added all subsequent sentences.
He contended that the maximum remission to which he was
entitled should be one-third of the total amount. Section 137 of
the Criminal Code provides that a person who escapes impris
onment shall, after serving any punishment to which he is
sentenced for that escape, serve the remaining portion of the
term that he was serving prior to his escape, including statutory
remission, but not including earned remission. The defendant
contends that section 137 provides for the imposition of a new
sentence on an escapee which blends with the remnant of the
sentence the inmate was serving when he escaped and that
blend constitutes a single sentence by the operation of section
137. The question is what is the term to which the plaintiff has
been sentenced upon which remission is to be based.
Held, the term "the sentence he is then serving" does not
mean a "sentence consisting of a term of imprisonment com
mencing on the earliest day on which any of those sentences of
imprisonment commenced and ending on the expiration of the
last to expire of such terms of imprisonment" pursuant to
subsection 14(1) of the Parole Act. Section 14 of the Parole
Act is general in its terms and subject to other legislation
specific in its application. By subsection 137(2) of the Criminal
Code, section 14 of the Parole Act applies in determining the
term of imprisonment that a person who escapes while undergo
ing imprisonment "was serving at the time of his escape". The
subsection does not say the term of imprisonment that the
"escapee" was serving at the time of his sentence for escape.
The plaintiff escaped on January 19, 1976. He was not sen
tenced to nine years on conviction for offences committed while
he was unlawfully at large until he was apprehended, tried and
sentenced. The sentence of nine years would be in a state of
limbo were it not for section 14 of the Parole Act which
includes the sentence of nine years constituting part of the
sentence which the plaintiff was serving and the new single
sentence resulting from the operation of section 137 in combin
ing the sentence for escape with the other sentence imposed
before the imposition of the escape sentence as one sentence.
R. v. Sowa (No. 2) [1980] 2 W.W.R. 83, agreed with.
SPECIAL case for adjudication by the Court.
COUNSEL:
Fergus J. O'Connor for plaintiff.
Robert P. Hynes for defendant.
SOLICITORS:
O'Connor, Ecclestone, Kingston, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: The plaintiff by statement of
claim dated December 3, 1980 disputes the calcu
lations by Her Majesty of the unexpired terms of
imprisonment to which the plaintiff was sentenced
on several occasions and seeks a declaration that
he is entitled to release from penitentiary in
accordance with his calculation which he contends
is correct in law.
Prior to trial the parties concurred in stating
questions arising from the statement of claim in
the form of a special case for adjudication in lieu
of trial pursuant to Rule 475(5) and moved
therefor.
That application was approved and the special
case was set down for hearing and decision
thereon.
The special case so set down for opinion of the
Court reads:
STATEMENT OF FACTS
1. The Plaintiff was sentenced on July 6th, 1971, to four years
imprisonment.
2. The Plaintiff was paroled on November 6th, 1972. He was
recommitted on a suspension warrant March 5th, 1973.
3. The Plaintiffs parole was forfeited on June 14th, 1973.
4. The Plaintiff was sentenced on June 14th, 1973, to a number
of terms which totalled two years consecutive to the unexpired
portion of any term for which parole was granted.
5. The Plaintiff was unlawfully at large for 31 days in January
and February, 1976. The Plaintiff, on April 13th, 1976, was
sentenced to a total term of nine years consecutive to any
sentence then being served.
6. The Plaintiff was, on September 14th, 1976, sentenced to
four months in Kingston Penitentiary as a result of a conviction
for being unlawfully at large pursuant to Section 133 1(b) of
the Criminal Code.
The question for adjudication is posed in para
graph 7 which reads:
7. The question for adjudication proposed by and concurred in
by both parties is as follows:
Does the term in Section 24.2 of the Penitentiary Act,
namely "The sentence he was [sic] then serving", mean a
"Sentence consisting of a term of imprisonment commencing
on the earliest day on which any of those sentences of
imprisonment (to which he was subject) commenced and
ending on the expiration of the last to expire of such terms of
imprisonment", pursuant to Section 14(1) of the Parole Act?
In the event of an affirmative or negative answer
to the question posed in paragraph 7 the respective
consequences are set out in paragraphs 8 and 9
which read:
8. If the Court shall be of opinion in the positive, a declaratory
order is to be made that the Applicant is entitled to earned
remission up to one-third of the aggregate calculated on that
basis.
9. If the Court shall be of opinion in a negative, then the
Applicant is not entitled to earn any earned remission after
December 1st, 1979, and his release date is to be calculated
accordingly.
Prior to June 30, 1978 there were two types of
remission: (1) statutory remission by which one-
quarter of the sentence was credited immediately
upon committal, and (2) earned remission to a
maximum of 36 days a year, earned at the rate of
three days a month. Roughly computed the com
bined remission would amount to one-third of the
sentence to imprisonment imposed or put another
way a convicted person would serve two-thirds of
the sentence imposed. Statutory remission may be
forfeit to an extent and under circumstances
prescribed.
Subsequent to June 30, 1978 statutory remission
was abolished by legislation proclaimed and
replaced by earned remission exclusively but
earned remission was increased to 15 days per
month or 180 days per year to preserve the one-
third proportion of remission to the sentence
imposed as previously prevailed.
Section 24.2 was added to the Penitentiary Act,
R.S.C. 1970, c. P-6, by amendment enacted by
S.C. 1976-77, c. 53, section 41 and proclaimed in
force as from July 1, 1978 and reads:
24.2 An inmate who has been credited with statutory remis
sion is not entitled to earned remission pursuant to subsection
24(1) beyond the date when the aggregate of
(a) the maximum number of days of statutory remission with
which he was at any time credited under this Act and under
the Prisons and Reformatories Act in respect of the term he
is then serving,
(b) the number of days of any earned remission standing to
his credit that accrued before the coming into force of this
section, and
(c) the maximum number of days of earned remission with
which he was at any time credited pursuant to subsection
24(1)
equals one-third of the sentence he is then serving.
The clear purpose of section 24.2 is to ensure
that an inmate of a penitentiary who has been
credited with statutory remission, when that
system prevailed and who later earned remission at
the higher rate of 15 days per month rather than
three days a month as formerly would not earn
maximum remission greater than one-third of the
sentence he is serving.
Because the remission permitted is one-third of
the sentence an inmate is serving, it is essential to
determine what that sentence is, for that is the
period to which one-third remission is to be
computed.
Section 14 of the Parole Act, R.S.C. 1970, c.
P-2, as re-enacted by R.S.C. 1970 (1st Supp.), c.
31, section 1 and as amended by S.C. 1977-78, c.
22, section 19 reads:
14. (1) Where, either before, on or after the 25th day of
March 1970,
(a) a person is sentenced to two or more terms of imprison
ment, or
(b) an inmate who is in confinement is sentenced to an
additional term or terms of imprisonment,
the terms of imprisonment to which he has been sentenced,
including in a case described in paragraph (b) any term or
terms that resulted in his being in confinement, shall, for all
purposes of this Act, the Criminal Code, the Penitentiary Act
and the Prisons and Reformatories Act, be deemed to consti
tute one sentence consisting of a term of imprisonment com
mencing on the earliest day on which any of those sentences of
imprisonment commences and ending on the expiration of the
last to expire of such terms of imprisonment.
By the Miscellaneous Statute Law Amendment
Act, 1978, S.C. 1977-78, c. 22, section 19, the
words "the Criminal Code" were inserted between
the words "for all purposes of this Act" and the
words "the Penitentiary Act and the Prisons and
Reformatories Act".
There is no doubt from the words "either before,
on or after the 25th day of March 1970" that the
section has a retroactive effect in determining a
single sentence for the purpose of computing
remission.
The language of section 14 of the Parole Act
indicates that all sentences imposed are deemed to
constitute one sentence for the term of the total of
the separate sentences imposed on a person.
The maximum remission to which an inmate is
entitled is one-third of the "sentence".
Thus from the agreed facts by the simple pro
cess of addition the total of the terms of imprison
ment to which the plaintiff has been sentenced is:
on July 6, 1971 4 years
on June 14, 1973 2 years
on April 13, 1976 9 years
on September 14, 1976 4 months
for the result of 15 years and four months or 5,601
days.
With simple logic counsel for the plaintiff
accordingly contends that the maximum remission
to which the plaintiff is entitled should be calculat
ed upon that sentence, that is one-third of 5,601
days for the resultant maximum remission of 1,867
days.
Counsel for the plaintiff readily concedes that
from this rough calculation there must be deduct
ed the statutory remission which the plaintiff for
feited and other like matters to determine the
unexpired period of the sentence he is "then
serving".
Section 14 of the Parole Act is both sweeping in
its language and effect. It is general in its terms.
One of the safest guides to the interpretation of
sweeping general provisions is that they are not
intended to apply without some limitation which
intention may be found in other provisions of the
same statute or in a different statute.
Put yet another way it is a cardinal rule of legal
interpretation that general provisions in the same
statute or other statutes are not to control or
repeal special provisions in the same statute or
another statute. The special provisions are to be
read as excepted out of the general. That is the
only way of reconciling such Acts of Parliament.
Accepting that section 14 of the Parole Act is
general it would be subject to other legislation
specific in its application.
Counsel for Her Majesty contends that such
special legislation exists in section 137 of the
Criminal Code, R.S.C. 1970, c. C-34, as in force
as at October 14, 1977 which reads:
137. (1) Except where 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.
(2) For the purpose of subsection (1), section 14 of the
Parole Act applies in determining the term of imprisonment
that a person who escapes while undergoing imprisonment was
serving at the time of his escape.
(3) A person who escapes while undergoing imprisonment
shall serve the term, if any, to which he is sentenced for the
escape and the additional term calculated in accordance with
subsection (1) in a penitentiary if the aggregate of such terms is
two years or more or, if the aggregate of such terms is less than
two years,
(a) in the prison from which the escape was made, or
(b) where the court, judge, justice or magistrate by whom he
is sentenced for the escape so orders, notwithstanding the
Parole Act, in a penitentiary,
and where a person is convicted for an escape, he shall,
notwithstanding section 659, be sentenced accordingly.
(4) For the purposes of this section, "escape" means breaking
prison, escaping from lawful custody or, without lawful excuse,
being at large within Canada before the expiration of a term of
imprisonment to which a person has been sentenced.
This very question was before the Saskatchewan
Court of Appeal in R. v. Sowa (No. 2) [1980] 2
W.W.R. 83. The question before the Court was
whether the penitentiary authorities properly inter
preted and applied section 137 of the Criminal
Code in force until October 15, 1977 (that is
section 137 as is quoted immediately above).
The judgment of the Court was delivered by
Culliton C.J.S. Speaking of section 137 he said at
page 87:
Under the foregoing section the sentence to be served by an
inmate who escapes is determined and served as follows:
(a) The sentence for escape must first be served;
(b) Following the sentence so imposed, he must serve the
term of imprisonment that he was serving at the time of escape
that had not been served, without allowance for statutory
remission;
(c) Credit is to be given in respect of such total sentence for
any time in custody between the inmate's apprehension and his
• sentence for escape.
The Chief Justice then reproduced section 14 of
the Parole Act. In commenting thereon he said at
page 88:
Clearly, the opening words of s. 14 (1), "Where, either
before, on or after the 25th day of March 1970", indicate that
the section, including the amendment of 1977-78, has a retroac
tive effect in determining a single sentence for the purpose of
statutory remission.
In the next paragraph he sets forth the conten
tion by the appellant, which reads:
The appellant contends that on the wording of s. 14 (1) the
single sentence in his case must be computed as beginning on
14th November 1971, the date upon which he was first sen
tenced to imprisonment. If it were not for the wording of s. 137
as it stood in 1973 I would have been inclined to agree with
that position.
This is the same contention as is advanced to
me. As previously indicated the plaintiff's counsel
contended that for the purposes of remission the
plaintiff's sentence must be taken as beginning on
July 6, 1971 when he was sentenced to four years
and he then added all subsequent sentences to a
total of 15 years, 4 months.
As I view the question which I must decide it is
a paraphrase of that set forth in paragraph 7 of the
special case to read:
What is the term to which the plaintiff has been sentenced
upon which remission is to be based?
Culliton C.J.S. in respect of the contention
advanced to him by the appellant said at page 88:
In my opinion, s. 137 of the Criminal Code as it existed in
1973 must be contrued [sic] as imposing a new sentence, one
which commenced when the sentence for escape was imposed.
This, I think, is the logical conclusion that can be drawn from
the manner in which, the section sets out, the sentence imposed
is to be served and calculated.
Under s. 137, which came into force on 15th July 1972, upon
conviction for escape after that date, the inmate would forfeit
all statutory remission standing to his credit. In subs. (3) that
portion of the sentence consisting of the remanet, as determined
in accordance with subs. (1), is referred to as "the additional
term", clearly indicating that the sentence imposed for escape
plus such additional term constitutes a single sentence. That
being so, the penitentiary authorities properly decided that the
single sentence, after the conviction for escape, commenced on
15th May 1973.
In essence what is being said is that a new
sentence is being imposed by the Court, judge,
justice or magistrate by whom an "escapee" is
sentenced for escape. While that convicting au
thority may simply impose a sentence of four
months (as was done in this instance) that four-
month sentence blends with the remnant of the
sentence the inmate was serving when he escaped
and that blend constitutes a single sentence by the
operation of section 137.
This is the contention advanced by counsel for
Her Majesty with reliance on the Sowa case.
I have been supplied with a sentence computa
tion of the plaintiff based on his prison history as
follows:
Days Balance
Original term from July 6, 1971-4 years 1461 1461
Served July 6, 1971 to November 6, 1972 —490 971
On parole November 7, 1972 to March 4,
1973 (no credit)
Served (on suspension) March 5, 1973 to
June 13, 1973 —101 870
Sentenced to 2 years consecutive June 14,
1973 (forfeiture) 731 1601
Served June 14, 1973 to January 18, 1976 —949 652
U.A.L. January 19, 1976 to February 18, 1976
(no credit)
Served February 19, 1976 to April 12, 1976 —54 598
Sentenced to total of 9 years consecutive
April 13, 1976 3287 3885
Served April 13, 1976 to September 13, 1976 —154 3731
Sentenced to 4 months consecutive (U.A.L.)*
September 14, 1976 122 3853
Earned remission to credit at time of U.A.L.
sentence —151 3702
* (The letters U.A.L. are an abbreviation of "unlawfully at
large")
Thus counsel for Her Majesty contends that the
single term resultant from the imposition of a
sentence of four months on September 14, 1976
and the operation of section 137 is a blended single
sentence of 3,702 days imposed on September 14,
1976 upon which remission is to be calculated.
The effect of subsection 137(2) has caused me
concern. By subsection 137(2) of the Criminal
Code, section 14 of the Parole Act applies in
determining the term of imprisonment that a
person who escapes while undergoing imprison
ment "was serving at the time of his escape". The
subsection does not say the term of imprisonment
that the "escapee" was serving at the time of his
sentence for escape.
The plaintiff escaped on January 19, 1976. He
was not sentenced to nine years on conviction for
offences committed while he was unlawfully at
large from January 19, 1976 to February 18, 1976
until he was apprehended, tried and ultimately
sentenced on April 13, 1976.
Thus there would appear to be a hiatus and the
sentence of nine years would be in a state of limbo
were it not for the operation of section 14 of the
Parole Act which includes the sentence of nine
years constituting part of the sentence which the
plaintiff was serving and the new single sentence
resulting from the operation of section 137 in
combining the sentence for escape with the other
sentence imposed before the imposition of the
escape sentence as one sentence, in this instance a
sentence of 3,853 days as indicated by the penulti
mate item in the computation reproduced above.
In my view the decision of the Sowa case is on
all fours with the facts of the present special case
and cannot be distinguished therefrom.
Counsel for the plaintiff suggested that the use
of the word "sentence" in the last two paragraphs
of the extracts quoted from the Sowa case was a
loose use of that word and should be replaced by
the word "term".
I do not think so. I think that Culliton C.J.S.
meant precisely what he said.
For the foregoing reasons I answer the question
posed in paragraph 7 in the special case in the
negative from which it follows that the plaintiff's
remission should be calculated on the basis
outlined in paragraph 9 of the special case.
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.