T-2411-82
Connie Davidson, an inmate of the Prison for
Women (Applicant)
v.
Prison for Women Disciplinary Court and Helen
P. King, the independent chairperson thereof
(Respondents)
Trial Division, Dubé J.—Ottawa, April 15 and 16,
1982.
Judicial review — Prerogative writs — Certiorari — Appli
cant convicted by disciplinary court of three separate assault
charges — Sentenced by chairperson to thirty days in segrega
tion on each count, to run consecutively — S. 38(4)(b) of
Regulations provides for dissociation for maximum period of
thirty days — Jurisdiction of chairperson to order consecutive
sentences — Submission by applicant that consecutive terms
not to be imposed unless specifically provided by statute —
Reference to s. 649(1) of Criminal Code where sentence com
mences when imposed except as otherwise provided in enact
ment — Disciplinary, not criminal, offence — No provisions in
Penitentiary Act or Regulations that punishment for discipli
nary offence commences when imposed — S. 38(4)(b) clear:
three separate offences, three consecutive terms — Discretion
of judge — Motion denied — Criminal Code, R.S.C. 1970, c.
C-34, ss. 645(4), 649(1) — Penitentiary Service Regulations,
C.R.C. 1978, Vol. XIII, c. 1251, ss. 38(4)(b), 39(b).
R. v. Blake [1962] 2 Q.B. 377, applied. R. v. Oakes
(1977) 37 C.C.C. (2d) 84, distinguished.
MOTION.
COUNSEL:
Fergus O'Connor for applicant.
E. R. Sojonky for respondents.
SOLICITORS:
Correctional Law Project, Faculty of Law,
Queen's University, Kingston, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
DUBÉ J.: This motion seeks a writ of certiorari
to quash the two sentences of 30 days each,
imposed upon the applicant by the chairperson of a
disciplinary court, to be served in punitive dissocia
tion and to run consecutively to another sentence
of 30 days, on the ground that the chairperson has
no jurisdiction to impose such sentences to run
consecutively.
The applicant is an inmate of the Prison for
Women at Kingston, Ontario. On February 15,
1982 she was convicted in disciplinary court at the
penitentiary of three separate assault charges con
trary to subsection 39(b) of the Penitentiary Ser
vice Regulations, C.R.C. 1978, Vol. XIII, c. 1251.
The assaults were committed on the same day on
three different female guards. On February 15 the
chairperson found her guilty of the three offences
and sentenced her to 30 days in segregation on
each count—to run consecutively—or a total of 90
days in segregation.
Counsel for the applicant argues that the au
thority of the chairperson founded on paragraph
38(4)(b) of the Penitentiary Service Regulations
does not include the power to make a sentence
consecutive. The paragraph reads as follows:
38....
(4) The punishment that may be ordered for a flagrant or
serious disciplinary offence shall consist of one or more of the
following:
(b) dissociation for a period not exceeding thirty days;
Counsel alleges that "in the criminal law con
text" the authority to impose consecutive sentences
is derived solely from a statutory provision, namely
subsection 649(1) of the Criminal Code of
Canada, R.S.C. 1970, c. C-34, which reads as
follows:
649. (1) A sentence commences when it is imposed, except
where a relevant enactment otherwise provides.
Since there are no provisions in the Penitentiary
Act, R.S.C. 1970, c. P-6, or the Penitentiary Ser
vice Regulations providing for consecutive sen
tencing, counsel invites the Court to apply to the
Act and the Regulations, which deal with the
liberty of a subject, an interpretation favourable to
the subject. He argues that if a specific enactment
is necessary under the Criminal Code to impose
consecutive sentences, a fortiori the imposing of
such serious punishment as consecutive solitary
confinement terms ought not to be imposed unless
it is specifically provided by statute. He relies on
an Ontario Court of Appeal decision, Regina v.
Oakes (1977) 37 C.C.C. (2d) 84, wherein Martin
J.A. held as follows [at page 88]:
I am disposed to think, however, that the power of a Court in
Canada to impose a consecutive sentence in respect of a
criminal offence must be found in existing federal legislation.
Unfortunately for the applicant, the analogy to
the Criminal Code does not really assist her case.
Subsection 649(1) aforementioned is preceded by
subsection 645(4) which empowers the Court to
direct that the terms of imprisonment of the
accused in certain circumstances "shall be served
one after the other". That is the exception referred
to in subsection 649(1). As outlined in Regina v.
Oakes, the ordinary rule is that a sentence of
imprisonment for a criminal offence commences
when it is imposed and the power of a court to
impose a consecutive sentence must be found in
existing federal legislation. In that case the
Ontario Court of Appeal found that none of the
circumstances set out in subsection 645(4) applied.
We are not dealing here with a criminal offence,
but with a disciplinary offence, and there are no
provisions either in the Penitentiary Act or the
Penitentiary Service Regulations analogous to
subsection 649(1) of the Criminal Code to the
effect that a punishment for a disciplinary offence
shall commence when it is imposed. Paragraph
38(4)(b) of the Penitentiary Service Regulations is
clear and plain: "The punishment .. . for a ...
serious disciplinary offence shall consist of ...
dissociation for a period not exceeding thirty
days." The applicant, having been convicted of
three separate disciplinary offences, may be
ordered to serve three consecutive terms not
exceeding 30 days each.
In Regina v. Blake [1962] 2 Q.B. 377, the
applicant pleaded guilty to separate offences under
the Official Secrets Act, 1911, 1 & 2 Geo. 5, c. 28,
and was sentenced to three consecutive sentences
of 14 years' imprisonment each. The applicant
applied for leave to appeal on the ground that,
since the maximum sentence of 14 years was pro
vided, to pass consecutive sentences of 14 years
each was to evade the limit of the Act. The Court
denied the application, holding that where each
count in an indictment charged a separate and
distinct offence, and the maximum sentence for
each offence was 14 years, it was for the judge in
the exercise of his discretion to determine whether
the sentences should be consecutive or concurrent.
The Court said (at page 380):
The answer to this is that there is no settled principle that a
judge may not pass consecutive sentences in respect of a
number of offences for any one of which the maximum sen
tence is 14 years where each offence charged in each count is
separate and distinct.
In my view, therefore, a writ of certiorari ought
not to issue to quash the consecutive sentences.
This motion is denied with costs.
ORDER
The motion is denied with 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.