Date: 19981106
Docket: T-75-98
OTTAWA, ONTARIO, THE 6th DAY OF NOVEMBER 1998
Present: THE HONOURABLE MR. JUSTICE MARC NADON
Between:
WALTER PARIS
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
ORDER
The applicant"s application is dismissed without costs.
MARC NADON
JUDGE
Certified true translation
Peter Douglas
Date: 19981106
Docket: T-75-98
Between:
WALTER PARIS
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
NADON J.:
[1] The applicant is currently detained at the Federal Training Centre institution, located at St-Vincent-de-Paul, Laval, Quebec. Since 1959, he has spent almost 30 years in detention.
[2] The applicant objects to the sentence calculation by the Correctional Service of Canada (the "Correctional Service"), according to which the end date of his sentence is May 6, 2004, and his statutory release date is July 19, 2001.
[3] In support of her submissions, the respondent filed the affidavit of Bernard Van Houtte, regional sentence administrator for the Correctional Service. The argument between the parties relates to paragraphs 18, 19 and 20 of Mr. Van Houtte"s affidavit. These paragraphs read:
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18. On January 9, 1975, inmate Paris was given two concurrent three-year sentences on each count, as appears in Exhibits R-2 and R-3 to the affidavit of Walter Paris; |
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19. The sentence of January 9, 1975, resulted in forfeiture of the full parole of February 22, 1971, under subsection 17(1) of the Parole Act then in force. I attach a copy of the warrant of committal upon forfeiture, of February 4, 1975, to this affidavit as Exhibit BV-6; |
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20. Under paragraphs 21(1)(a) and (b) of the Parole Act, this forfeiture had the effect of making the three-year sentence of January 9, 1975, consecutive to the sentence inmate Paris had yet to serve at the time of his release on February 22, 1971; |
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[4] According to the Correctional Service, the three years imposed on the applicant on January 9, 1975, are to be served consecutively to the sentence he was already serving. The applicant disagrees with this position. In his view, it is clear that the sentences that were imposed on him are to be served concurrently with the previous sentence.
[5] The issue to be determined is whether, for the purposes of the applicant"s sentence calculation, the three years are to be added to the sentence that was already imposed on him.
[6] Subsections 17(1) and 21(1) of the Parole Act, 1958 (Can.), c. 38 (the Act), in force in January 1975, provided:
| 17. (1) Where a person who is, or at any time was, a paroled inmate is convicted of an indictable offence, punishable by imprisonment for a term of two years or more, committed after the grant of parole to him and before his discharge therefrom or the expiry of his sentence, his parole is thereby forfeited and such forfeiture shall be deemed to have taken place on the day on which the offence was committed.
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17. (1) Lorsqu"un individu qui est ou qui a été à un moment un détenu à liberté conditionnelle est déclaré coupable d"un acte criminel punissable d"un emprisonnement d"au moins deux ans, commis après que la libération conditionnelle lui a été accordée et avant qu"il ait été relevé des obligations de cette libération conditionnelle ou avant l"expiration de sa sentence, sa libération conditionnelle est, de ce fait, frappée de déchéance et cette déchéance est censée dater du jour où l"infraction a été commise.
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| 21. (1) When any parole is forfeited by conviction for an indictable offence, the paroled inmate shall undergo a term of imprisonment, commencing when the sentence for the indictable offence is imposed, equal to the aggregate of
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21. (1) Lorsqu"une libération conditionnelle est frappée de déchéance par une déclaration de culpabilité d"un acte criminel, le détenu à liberté conditionnelle doit purger un emprisonnement, commençant lorsque la sentence pour l"acte criminel lui est imposée, d"une durée égale au total
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| (a) the portion of the term to which he was sentenced that remained unexpired at the time his parole was granted, including any period of remission, including earned remission, then standing to his credit, and |
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| a) de la partie de l"emprisonnement auquel il a été condamné qui n"était pas encore expirée au moment de l"octroi de cette libération, y compris toute période de réduction de peine inscrite à son crédit, notamment la réduction de peine méritée, et |
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| (b) the term, if any, to which he is sentenced upon conviction for the indictable offence, |
minus
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| b) de l"emprisonnement, le cas échéant auquel il est condamné sur déclaration de culpabilité de l"acte criminel, |
moins
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| (c) any time he spent in custody after conviction for the indictable offence, and before the sentence was imposed. |
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| c) le temps qu"il a passé sous garde après déclaration de culpabilité de l"acte criminel avant que la sentence ne lui ait été imposée. |
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[7] Subsections 645(4) and 649(1) of the Criminal Code, R.S.C., 1970, c. C-34, which applied when the sentence in question was passed (in 1975), are also relevant, and I quote them:
| 645. (4) Where an accused
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645. (4) Si un accusé, selon le cas :
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| (a) is convicted while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed,
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a) est déclaré coupable alors qu"il est sous le coup d"une sentence pour infraction et si une période d"emprisonnement, soit à défaut du paiement d"une amende, soit autrement, est imposée;
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| (b) is convicted of an offence punishable with both fine and imprisonment, and both are imposed with a direction that, in default of payment of the fine, the accused shall be imprisoned for a term certain, or
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b) est déclaré coupable d"une infraction punissable à la fois d"une amende et d"un emprisonnement et si les deux sont imposés avec stipulation que, faute de paiement de l"amende, il doit être emprisonné pour une période déterminée;
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| (c) is convicted of more offences than one before the same court at the same sittings, and
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c) est déclaré coupable de plus d"une infraction devant le même tribunal pendant la même session, et si, selon le cas :
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| (i) more than one fine is imposed with a direction in respect of each of them that, in default of payment thereof, the accused shall be imprisoned for a term certain, |
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| (i) plus d"une amende est imposée avec stipulation, à l"égard de chacune d"elles, que, faute de paiement de l"amende, il doit être emprisonné pour une période déterminée, |
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| (ii) terms of imprisonment for the respective offences are imposed, or |
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| (ii) des périodes d"emprisonnement sont imposées pour les infractions respectives, |
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| (iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another offence with a direction that, in default of payment, the accused shall be imprisoned for a term certain, |
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| (iii) une période d"emprisonnement est imposée à l"égard d"une autre infraction et une amende imposée à l"égard d"une autre infraction avec stipulation que, faute de paiement, l"accusé doit être emprisonné pour une période déterminée, |
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| the court that convicts the accused may direct that the terms of imprisonment shall be served one after the other.
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le tribunal qui condamne l"accusé peut ordonner que les périodes d"emprisonnement soient purgées l"une après l"autre.
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| 649. (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.
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649. (1) Une sentence commence au moment où elle est imposée, sauf lorsqu"un texte législatif pertinent y pourvoit de façon différente.
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[8] These provisions of the Criminal Code were considered by the Supreme Court in Paul v. The Queen, [1982] 1 S.C.R. 621. At pages 664 and 665, Lamer J. (as he then was) explained the power conferred on a judge by paragraph 645(4)(c) of the Criminal Code to impose a sentence consecutive to that imposed by another judge. He said:
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In the result, a judge may order that a sentence be served consecutively to another sentence he has previously or is at the same time imposing (s. 645(4)(c)); but he cannot order that a sentence be made consecutive to that imposed by another judge in another case unless that sentence had already been imposed by the other judge at the time of the conviction in the case in which he is sentencing (s. 645(4)(a)). |
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I am not unmindful of the stress I am suggesting we put on Parliament"s words and the fact that little or no meaning is being given to the words "at the same sittings"; but I am encouraged in this endeavour when considering the absurd results we are led into by the alternative. |
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Before concluding, I should add, with regard to respondent"s suggestion that there is a general power to sentence consecutively, that in my view Parliament codified in 1892 the powers to sentence consecutively. Indeed, s. 649(1) requires that the power be found in some (federal) enactment. Section 645 is one such enactment, so are other sections such as ss. 83(2), 137(1). |
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[9] In Ex Parte Kerswill (1976), 28 C.C.C. (2d) 362, the situation was similar to the one in the instant case. In that case, Van Camp J. of the Ontario High Court of Justice had to decide whether a sentence of [TRANSLATION] "two years" imprisonment to be served concurrently from this date" was to be served concurrently with a previous sentence or consecutively. At pages 365 to 368, after a careful review of the applicable Act and relevant case law, he reached the conclusion that the sentence of two years" imprisonment was to be served consecutively to the previous sentence. He wrote:
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There was no appeal from the sentence imposed in Montreal and I am now asked to construe it as a concurrent sentence inasmuch as it provided that it was to be served concurrently commencing when it was imposed. Did the words "concurrently" mean any more than that the two terms imposed that day were to be served concurrently and did the words "a [sic ] compter de ce jour" mean that the sentences were to be served concurrently rather than consecutively to the unexpired portion of his previous sentence? Section 649(1) of the Criminal Code , R.S.C. 1970, c. C-34, provides: |
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649(1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides. |
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It is necessary to consider the provisions of s. 21(1) of the Parole Act, which is as follows: |
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21(1) When any parole is forfeited by conviction for an indictable offence, the paroled inmate shall undergo a term of imprisonment, commencing when the sentence for the indictable offence is imposed, equal to the aggregate of |
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(a) the portion of the term to which he was sentenced that remained unexpired at the time his parole was granted, including any period of remission, including earned remission, then standing to his credit, and |
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(b) the term, if any, to which he is sentenced upon conviction for the indictable offence, minus |
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(c) any time he spent in custody after conviction for the indictable offence, and before the sentence was imposed. |
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That section, and its predecessor, s. 17(1) of the Parole Act, 1958 (Can.), c. 38, have been considered in several cases. In two that have been submitted to me there seem to be contrary views although the question was not directly before the Court in either. In Re Adams, an unreported decision of Mr. Justice Ruttan of the Supreme Court of British Columbia, heard November 30, 1973, the Court was considering the submission that there was in existence no sentence with which the sentence before the Court could be made concurrent. Since the accused had been on parole and the parole had been suspended but not forfeited, the learned Judge held that there was in existence a sentence to what the later sentence could be said to be concurrent and then continued: |
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In [sic] do not see anything in s. 21 of the Parole Act that forbids the imposition of a concurrent sentence once it can be said that the prisoner under a suspension is serving his original sentence. If no order for "concurrence" were made, I agree that the term would be consecutive. |
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In s. 21 it is provided that the effect of forfeiture will make the term of imprisonment the aggregate of the portion that remained from his unexpired term at the time of parole plus the term, if any, to which he is sentenced upon conviction for the present indictable offence. Section 21(b) reads in fact: |
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"The term, if any, to which he is sentenced upon conviction for the indictable offence . . . " But where a term is made to be concurrent there is none to be added in the aggregate sense. |
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In Ex p. Muzylo (1971), 2 C.C.C. (2d) 253 at p. 256, [1971] 1 O.R. 754, Mr. Justice Pennell of the Supreme Court of Ontario was considering the effect of the predecessor, s. 17(1) which read: |
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"17(1) When any parole is forfeited by conviction of an indictable offence the paroled inmate shall undergo a term of imprisonment equal to the portion of the term to which he was originally sentenced that remained unexpired at the time his parole was granted plus the term, if any to which he is sentenced upon conviction for the offence." |
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It had been admitted before him that the amendment to s. 17(1) (the present s. 21(1)), prohibited the imposition of a sentence to run concurrently with the unexpired portion of the sentence upon which parole was granted. It was submitted that the purpose of the amendment was to prohibit for the first time the imposition of a sentence to run concurrently with the unexpired portion of an original sentence and that prior to the amendment it must, therefore, have been permissible in law to impose a sentence to be served concurrently. The learned Judge was unable to accede to that argument; he looked at the precise words of s. 17(1) and held that the sentence imposed upon conviction for the new offence should be served consecutively to the unexpired term. He pointed out that the amendment was framed quite differently from its immediate predecessor and said: "In my opinion, the effect of the section as amended remains in substance as before." |
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Upon consideration of the exact wording of s. 21(1), I must respectfully agree with the interpretation given to it by Mr. Justice Pennell. I have in mind the statement in Marcotte v. Deputy A.-G. Can. (1974), 19 C.C.C. (2d) 257 at p. 262, 51 D.L.R. (3d) 259, [1976] 1 S.C.R. 108: |
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. . . that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. |
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I have compared the wording in s. 9(1) of the Ticket of Leave Act, R.S.C. 1952, c. 264, and s. 137(1) of the Criminal Code which are respectively in part as follows: |
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9(1) When any such licence is forfeited by a conviction of an indictable offence . . . the person . . . shall, after undergoing any other punishment to which he may be sentenced for any offence in consequence of which his licence is forfeited or revoked, further undergo a term of imprisonment equal to the portion of the term to which he was originally sentenced and which remained unexpired at the time his licence was granted. |
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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 . . . at the time of his escape . . . |
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The words of s. 21(1) of the Parole Act are differently framed, but they are explicit that upon forfeiture of parole the term of imprisonment that is to be served is equal to the aggregate of three time periods one of which is the term, if any, to which he is sentenced upon conviction for the indictable offence. Once that term is imposed it will form part of the aggregate. Consequently, I must hold that the sentences imposed in Montreal herein could not be concurrent. I would presume that the Judge giving the sentence in Montreal, held the same opinion, and that there was no ambiguity in the sentences he imposed. |
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[10] Another relevant decision is the decision of McKenzie J. of the British Columbia Supreme Court in Ex Parte Guenette (1976), 27 C.C.C. (2d) 279. In that case, McKenzie J. also had to decide whether a sentence for a crime committed by an inmate while he was on parole was to be served concurrently with, or consecutively to, previous sentences. The relevant facts, as summarized by McKenzie J., appear at pages 280 and 281:
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The applicant Guenette is still serving time on the following array of sentences: |
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(1) February 6, 1967, four (4) years for breaking and entering; |
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(2) February 8, 1967, two (2) years for uttering a forgery, to be served consecutively; |
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(3) January 28, 1969, eighteen (18) months for escape; |
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(4) March 30, 1971, two (2) years for attempted breaking and entering; |
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(5) April 14, 1971, parole forfeiture; |
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(6) August 30, 1972, one (1) year for being unlawfully at large. |
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Before completing sentences (1) and (2), he escaped. Upon capture he immediately served sentence (3), as s. 137(1) [rep. & sub. 1972, c. 13, s. 9] of the Criminal Code requires that the escape sentence take priority over the remanet of the sentences being served at the time of the escape: |
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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. |
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After first serving sentence (3) and then all or part of the remanet for sentences (1) and (2), he was paroled and while on parole committed the indictable offence of attempted breaking and entering and he was given sentence (4). His parole was forfeited and then he apparently escaped again and was given sentence (5). |
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The Canadian Penitentiary Service continue to hold him on the strength of sentence (4) reasoning that he is required to serve that two-year term consecutively to any remanet from sentences (1) and (2) or, put the other way, he must serve the remanet first followed by the additional term imposed by the new sentence. |
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On the other hand, the applicant maintains that to construe the word "aggregate" in s. 21(1) properly will produce the result of applying s. 649(1) so that sentence (4) would begin to run on March 30, 1971, when it was imposed and it would blend with the remanet left from sentences (1) and (2). If this mode of calculation is correct and even after adding sentence (5) and, of course, allowing any remissions, he will have served his time and will be entitled to go free. |
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[11] Like Van Camp J. in Ex Parte Kerswill, McKenzie J. reached the conclusion that the sentence imposed on the inmate for a crime committed while he was on parole was to be served consecutively to the previous sentence. I note that both decisions considered by Van Camp J. in Ex Parte Kerswill"the decisions in Ex p. Muzylo and Re Adams"were also considered by McKenzie J.
[12] In concluding as he did, McKenzie J. explained why he could not conclude as his brother Ruttan J. had in Re Adams. At pages 286 and 287, he said:
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The Adams decision does not mention any of the cases above-cited and indeed none of them is clearly contrary to Ruttan, J."s, ruling. |
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In Adams, the sentencing Judge has imposed the subsequent sentence as a concurrent one. In the cases before me the sentencing Judge did not qualify the sentence either way so s. 645(4) would make them concurrent. We seem to arrive then at the same point as did Ruttan, J., in the Adams case. When Ruttan, J., said "But where a term is made to be concurrent there is none to be added in the aggregate sense", he seemed to be construing the word "aggregate" in the sense urged by the applicants. |
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On consultation with my brother Ruttan, J., I find that none of the authorities mentioned above were cited to him, and he did not consider them. Since I share the view of Pennell, J., in Ex p. Muzylo, supra, that the effect of the later version of s. 17(1) "remains in substance as before", and that the same comment applies to s. 21(1), I am therefore emboldened to conclude that the Adams decision might have been different if the relevant authorities had been argued. |
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If I had been called upon to construe s. 21(1) without the aid of the decisions under the earlier s. 17(1) or of the decisions under s. 21(1), I would have concluded that aggregate is used in the "primary" sense defined by Ritchie, J., in Minister of National Revenue v. Imperial Oil Ltd. , supra, as "a plurality of units whose total amount it represents". |
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The applicants" view is that the word "aggregate" has a broader sweep than the word "plus" which was the operative word in s. 17(1) and the one which persuaded all Judges construing its meaning to hold that it would render illegal anything but a consecutive sentence for the indictable offence committed while on parole. "Aggregate" in this broad sense would appear to embrace both pluses and minuses. If it could include a minus quantity then a fortiori it could include a concurrent sentence which sort of shares the attributes of both a plus and a minus quantity. |
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This notion is defeated in my mind, however, by the intermediate words "minus the aggregate of" which divide paras. (a ), (b) and (c) of s. 21(1), on the one hand, from paras. (d) and (e), on the other hand. The first three paragraphs are all positive quantities, and the last two negative quantities. |
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This leads me to the conclusion that the clear intent of the whole of s. 21(1) is to add up, or aggregate the three positive time periods, i.e., the remanet, the sentence for the indictable offence and the time spent at large, and then subtract the aggregate or total of the negative periods, i.e., time in custody while parole forfeited was suspended and time in custody before sentence. The two minus quantities are totalled or aggregated before subtraction. |
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As I see it, the draughtsman used "aggregate" as the most appropriate, all-purpose word to embrace these concepts. |
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I think it appropriate to look at the whole of s. 21(1) to discern the meaning of the word "aggregate" but we are concerned only with its application in s. 21(1)(a ) and (b). It applies, then, as I see it, to mean that the paroled inmate must undergo a term of imprisonment equal to the remanet plus the term for which he was sentenced for the indictable offence plus anything under para. (c) and minus the total of paras. (d) and (e). |
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[13] One other decision is relevant: the decision of Marceau J., as he then was, in Kula v. Raymond Picard, [1983] 1 F.C. 95. In that case, an inmate had filed a motion for a declaratory judgment regarding the time he was to serve in Archambault Institution at Ste-Anne-des-Plaines. As in the present case, while on parole, the inmate had committed a number of crimes for which he was given sentences that were to be served concurrently. Once again, I quote the summary of the relevant facts prepared by the trial judge at pages 96 and 97:
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The facts are straightforward and it is easy to see the question they at once raise. On July 10, 1974 applicant, who was serving terms of imprisonment on which there were still 218 days to run, was released under "mandatory supervision" by a decision of the National Parole Board. On August 20, 1974, his release under supervision was abruptly suspended when a warrant of committal was issued following the commission by him of a new series of criminal offences. On September 25, he received a sentence for the first group of five offences committed on the same occasion: for one of the offences, the subject of a case numbered 11928, the Judge sentenced him [TRANSLATION] "to five years" imprisonment" without further clarification, and on the other four, all separate cases, the Judge sentenced him to varying numbers of months of imprisonment, which were in each case to be [TRANSLATION] "concurrent with case No. 11928". When the appeal deadlines for these sentences had expired, appellant"s "mandatory supervision", which had been suspended when he was arrested the preceding August 20, was finally revoked pursuant to section 13 of the Parole Act , R.S.C. 1970, c. P-2. It then became necessary to determine the effect of this revocation in practice, and in particular to decide how to treat the time remaining to be served on the earlier sentences (182 days at this time) in relation to the time specified in the concurrent sentences of September 25. As the Judge had said nothing regarding this remanet of 182 days, was there not a question as to whether these days should be added to the five years newly imposed or be served "concurrently"? |
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[14] Sections 17 and 21 of the Act, applicable in the case at bar, were also applicable in Kula. In rejecting the inmate"s argument that the sentences for the criminal acts committed while he was on parole were to be served concurrently with the previous sentence, Marceau J. said at pages 97 and 98:
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To the authorities, the provisions of this section, applicable to an inmate under supervision as to one on parole (subsection 15(2) of the Act), were clear: the time of the remanet was not to be served concurrently with that of the new sentences; the two were to be added together. |
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It is this interpretation by the authorities which applicant seeks to dispute by his action. He is simply questioning whether it is possible to apply section 21 of the Parole Act here. Why? Because, in his view, the effect of applying the provisions of this section would be to alter the sentence as imposed by the Judge, since under section 649 of the Criminal Code, R.S.C. 1970, c. C-34, a sentence must begin to run immediately on the day it is imposed, not at a later date, and the administration cannot arrogate to itself the right to alter a sentence imposed by a judge. |
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I feel that applicant is misreading or not fully reading the provisions in question. First, section 649 of the Criminal Code contains a significant exception to the basic principle enacted in the section, since it states that a sentence commences when it is imposed "except where a relevant enactment otherwise provides". In any case, however, there is no conflict between the general provision of section 649 of the Criminal Code taken in itself, and that of section 21 of the Parole Act: the latter section peremptorily determines the time that an inmate on parole or under supervision must serve if his parole is forfeited as the result of a new sentence, and it provides that this time shall be what remained unexpired on the old sentence in addition to that of the new sentence; the section does not seek to determine the starting point from which this total term shall run, or that of any of its component parts. Section 21 of the Parole Act in 1974 was mandatory. The Judge could not disregard it, and there is no indication that he did so: its application left intact the sentence imposed by him, regardless of the scope of section 649 of the Criminal Code. The administrative authorities could not come to any other conclusion than they did. |
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[15] Since I fully agree with Van Camp, McKenzie and Marceau JJ., it is now a matter of reviewing the sentence imposed by Madame Justice Claire Joncas of the Superior Court of Quebec on January 9, 1975, and determining whether the facts in this instance should be distinguished. As Mr. Van Houtte stated at paragraph 18 of his affidavit, the applicant was given two concurrent three-year sentences on each count. The sentences imposed appear on the warrants of committal dated January 21 and December, 1975, and read:
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WHEREAS on January 9, 1975, Walter Irving Paris, hereinafter called the accused, was sentenced before Joncas on the charge that AT Montreal, district of Montreal |
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1- On or about August the [sic] 28th 1974, did steal from Robert LAROCQUE, $4,000.00, while armed with offensive weapon, to wit: a revolver, contrary to Section 302(d) of the Criminal Code. |
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2- At Montreal, district of Montreal, Walter Irving PARIS, on or about the [sic] August the [sic] 28th 1974, did conspire with Michael O"CONNOR and with other unknown persons to commit an indictable offence not provided for, in paragraph A, B or C of Section 423 of the Criminal Code, to wit: a robbery, committing offence according to Section 423-D of Criminal Code. |
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And whereas it was decided that for his offence the accused, |
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A) be imprisoned in the penitentiary at St-Vincent de Paul, district of Montreal, for the term of 3 concurrent years on each count. |
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WHEREAS on January 9, 1975, Walter Irving Paris, hereinafter called the accused, was sentenced before Justice: C. Joncas on the charge that AT Montreal, district of Montreal |
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1- On or about August the [sic] 28th 1974, did unlawfully traffic in a narcotic, to wit: 2 oz. of a substance held out to be heroin, contrary to Section 4(1) of the Narcotic Control Act., R.S.C. 1970, c. N-1, committing thereby an indictable offence under section 4(3) of the said Act. |
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2- At Montreal, district of Montreal, on or about August the 28th 1974, Walter PARIS, did conspired [sic] with Michael O"CONNOR and with others [sic ] persons heretofore unknown to commit an indictable offence to wit: the unlawful traffic of 2 oz. of a substance held out to be heroin, contrary to section 4(1) of the Narcotic Control Act, R.S.C., c. N-1, committing thereby an indictable offence under section 423-1-d [sic] of the Criminal Code. |
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And whereas it was decided that for his offence the accused, |
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A) be imprisoned in The penitentiary at St-Vincent de Paul, district of Montreal, for the term of 3 conc"t years on each count, conc"tly with file 74-9589. |
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[16] On the face of these warrants, there can be no doubt that Joncas J. imposed two concurrent three-year sentences on each count, concurrently as between both files. Therefore, the applicant was to serve only three years for the four counts. The question I have to answer is whether this three-year sentence is to be served concurrently with, or consecutively to, the previous sentence the applicant was to serve.
[17] Joncas J. specified in the sentence for file 9424-74 that the three-year sentence was to be served concurrently with the sentence she imposed in file 9589-74. To all intents and purposes, this sentence is identical to the sentence Van Camp J. had to construe in Ex Parte Kerswill. Since Joncas J. did not mention that the sentence she passed was to be served consecutively to the previous sentence, in view of subsection 649(1) of the Criminal Code, it was to commence running when it was imposed unless "a relevant enactment otherwise provides". I am of the view that subsection 21(1) of the Act is a relevant enactment that otherwise provides. As Marceau J. made it clear in Kula , section 21 of the Act is mandatory. Under these circumstances, without a clear statement from Joncas J. that the applicant"s sentence was to be served concurrently with the previous sentence, I cannot conclude that Joncas J. either disregarded or misinterpreted section 21 of the Act. I would like to refer again to the remarks of Marceau J. at page 98 of the reported decision in Kula , where he said:
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. . . Section 21 of the Parole Act in 1974 was mandatory. The Judge could not disregard it, and there is no indication that he did so: its application left intact the sentence imposed by him, regardless of the scope of section 649 of the Criminal Code. The administrative authorities could not come to any other conclusion than they did. |
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These remarks are along the same lines as those of Van Camp J. in Ex Parte Kerswill, where he said at page 368:
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Consequently, I must hold that the sentences imposed in Montreal herein could not be concurrent. I would presume that the Judge giving the sentence in Montreal, held the same opinion, and that there was no ambiguity in the sentences he imposed. |
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[18] There can be no doubt that if the judges imposing the sentences under review in Ex Parte Kerswill, Kula and the case at bar had specified that their sentences were to be served concurrently with the previous sentence, only an appeal could have remedied the situation. In other words, if the judges imposing the sentences had disregarded or misinterpreted the effect of section 21 of the Act, only an appeal could have corrected this error. Without an appeal, the Correctional Service, in my view, would not have calculated the sentence as it did in these cases and in the case at bar.
[19] As a result, I have reached the conclusion that the Correctional Service did not make any error in calculating the end date of the applicant"s sentence as it did. In my view, there is no basis for me to distinguish the facts of the case at bar from those in Ex Parte Kerswill , Ex Parte Guenette and Kula.
[20] The applicant raised a second point at the hearing. This argument stems from a letter sent by Mr. Van Houtte to the applicant on August 30, 1985. The letter reads:
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Further to the letter of the Correctional Investigator dated May 23rd, 1985 this is to inform you that your sentence has been revised by the Chief, Sentence Administrator, at the National Headquarters. |
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You will find inclosed [sic] copy of the calculation done by the Chief Sentence, Administrator showing your new mandatory supervision date June 10, 1989 and the new warrant expiry date april [sic] 15, 1993. |
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We will advise the Sentence Administrator of the Leclerc institution to make the necessary amendments to your file. |
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Following the remission not earned for the month of October 1984, 1 day and for November 1984, 4 days, your new mandatory supervision is fixed for 13 january [sic] 1989. |
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Regional Chief Sentence administrator. |
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[21] As indicated in this letter, Mr. Van Houtte informed the applicant that the end date of his sentence was April 15, 1993. However, on March 26, 1993, Mr. R.B. Hewton, the national chief sentence administrator of the Correctional Service, informed the applicant that there was an error in the 1985 sentence calculation. At paragraphs 40 to 43 of his affidavit, Mr. Van Houtte explained the error:
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40. It is true that by letter dated August 30, 1985, following instructions from CSC national headquarters, I informed inmate Paris that his warrant expiry date was changed to April 15, 1993, as appears in Exhibit R-9 to the affidavit of Walter Paris; |
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41. This letter was based on a sentence calculation of which a copy is attached to this affidavit as Exhibit BV-15; |
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42. This calculation was erroneous in that it deducted earned remission credits and a statutory remission credit from the length of the sentence. This was an error since remission credits were applicable in the calculation of the statutory release date but not for the warrant expiry date. |
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43. This error was explained to inmate Paris in a letter dated March 26, 1993, signed by Mr. Hewton, national chief sentence administrator, to which was attached a new detailed calculation of the inmate"s sentence, as appears in a copy of the letter and calculation attached to this affidavit as Exhibit BV-16 . |
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[22] The applicant submits that the Correctional Service"s error, corrected after eight years, caused him to live in expectation of an earlier release of approximately five years. As a result, in his opinion, I should give precedence to the 1985 sentence calculation. This argument is obviously unsound, since the Supreme Court of Canada clearly stated in Reference re Canada Assistance Plan (B.C.) , [1991] 2 S.C.R. 525, that the doctrine of legitimate expectations could not create substantive rights. At pages 557 and 558, for the Court, Sopinka J. said:
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There is no support in Canadian or English cases for the position that the doctrine of legitimate expectations can create substantive rights. It is a part of the rules of procedural fairness which can govern administrative bodies. Where it is applicable, it can create a right to make representations or to be consulted. It does not fetter the decision following the representations or consultation. |
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[23] Therefore, the error made in 1985 can in no way create or vest substantive rights in the applicant, and, as a result, the 1993 calculation must prevail.
[24] Last, I would like to mention that the applicant submitted arguments based on the Canadian Charter of Rights and Freedoms. In my view, these arguments are without merit and must be rejected.
[25] For these reasons, the applicant"s application is dismissed without costs.
| Ottawa, Ontario MARC NADON |
November 6, 1998 Judge
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: T-75-98
STYLE OF CAUSE: Walter Paris v. Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 3, 1998
REASONS FOR JUDGMENT OF: The Honourable Mr. Justice Nadon
DATED: November 6, 1998
APPEARANCES:
Pascal Lescarbeau for the applicant
Éric Lafrenière for the respondent
SOLICITORS OF RECORD:
Pascal Lescarbeau
Montréal, Quebec
for the applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the respondent