Judgments

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T-1728-77
Pierre Longpré (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Marceau J.—Montreal, December 2, 1977; Ottawa, January 20, 1978.
Imprisonment Length of sentence to be served While serving other sentences, two-year sentence for escaping, to be served consecutively, imposed Eleven months later, twenty- five year sentence imposed "to be served consecutively to the sentence he is currently serving" Whether this last sentence to begin to run after all other sentences are served, or after the two-year sentence for escaping has been served Parole Act, R.S.C. 1970, c. P-2, s. 14 Criminal Code, R.S.C. 1970, c. C-34, s. 137(1).
Plaintiff is asking the Court to determine the time he must still serve in penitentiary under the several sentences imposed on him: one estimation showed he had twenty-seven years yet to serve while a revision of that estimation indicated forty-seven years. Plaintiff, who was serving a number of sentences, some running concurrently and some running consecutively, was convicted of escaping prison and sentenced to "two years' imprisonment to be served consecutively to any other sentence he is currently serving." Eleven months later he pleaded guilty to other charges and was sentenced to "twenty-five years to be served consecutively to the sentence he is currently serving." The problem is which is "the sentence he is currently serving" at the end of which the twenty-five year sentence will begin to run.
Held, the action is allowed. Two interpretations, both based on statute, are possible. One is that the Judge imposing the last sentence was referring to all the time during which plaintiff was to be imprisoned. The other is that, since service of all sentences is suspended until the sentence imposed for escaping has been served, the twenty-five year term "to be served consecutively to the sentence he is currently serving" would start to run after the two-year sentence being imposed. The choice is only theoretical because in a situation of this kind it is not possible to disallow the interpretation which is more favour able to the plaintiff. This results from the application of a principle which is primarily relied on in interpreting statutes, but which also must be applied when a criminal sentence is being interpreted.
Marcotte v. Deputy Attorney General of Canada [1976] 1 S.C.R. 108, followed.
ACTION. COUNSEL:
Jean Sirois for plaintiff.
Daniel Bellemare for defendant.
SOLICITORS:
Cliche, Rumanek, Rouleau, Sirois & Bastien, Montreal, for plaintiff.
Deputy Attorney General of Canada for defendant.
The following is the English version of the reasons for judgment rendered by
MARCEAU J.: Plaintiff Pierre Longpré is at present an inmate of the City of Laval Correction al Development Centre in the Province of Quebec. He is asking the Court to determine the time he must still serve in the penitentiary under the sever al sentences imposed on him. He certainly has grounds for asking: on August 13, 1975 a docu ment issued by the Sentence Administrator at the Laval Correctional Centre (Exhibit P-9) showed that as of March 1, 1973 he still had twenty-seven years to serve, whereas on May 6, 1976 another document (Exhibit P-12) informed him that the central "Sentence Administration" in Ottawa, as the result of a review of his file, had corrected the first estimate and established his sentence still to be served at forty-seven years and six months commencing November 5, 1970. It is clear, there fore, that it is in his interest to have his sentence determined without delay: not only would a deci sion upholding the first estimate help him psycho logically, but it might even influence certain aspects of his detention in the future. Longpré certainly does not evoke sympathy, and it is hard to imagine a more extensive criminal record. How ever, he is entitled to the protection of the law and he must be allowed to exercise all the judicial remedies it provides. Moreover, defendant does not dispute his right to obtain the declaratory judg ment which he is seeking. I therefore intend to hear the application.
The difference between the calculation of August 13, 1975 and that of May 6, 1976 men tioned above seems surprising at first sight, but it is easily explained by the problem at issue. Over the years Longpré was found guilty of a long series of criminal offences for each of which he was sentenced to terms of imprisonment. Several of these penalties are to be served concurrently, although they were imposed in separate sentences:
they must all be served at the same time. Others, however, were intended to be served "successive- ly", to run one after another and thus to be cumulative. One of these "successive" sentences raises a difficulty, however, as to which sentence or sentences it must follow, and accordingly, on what date it begins to run. This sentence is one of twenty-five years and herein lies the problem.
It would serve no purpose here to reproduce plaintiff's complete criminal record and to list the numerous sentences which were imposed on him. The problem to be solved was defined very precise ly in the submissions and counsel were in agree ment as to the consequences involved in both possible solutions to the problem. These conse quences are, moreover, very well defined by the two aforementioned documents of August 13, 1975 and May 6, 1976. Accordingly, I shall adhere strictly to the facts that are directly connected with the problem at issue.
On October 29, 1972 Longpré escaped for the second time from the penitentiary where he is still to be held for several years. He was recaptured some months later, but unfortunately he had time meanwhile to commit other very serious offences. On March 1, 1973 he was first of all convicted of escaping. The sentence read as follows: [TRANSLA- TION] "Two years' imprisonment to be served consecutively to any other sentence he is currently serving". Eleven months later, on January 14, 1974, he pleaded guilty to the charges laid against him for the other offences committed during his escape. The Judge then sentenced him to [TRANS- LATION] "Twenty-five years to be served consecu tively to the sentence he is currently serving". This is where the problem of interpretation arises: which is [TRANSLATION] "the sentence he is cur rently serving", at the end of which the twenty-five year sentence imposed by the Judge on January 14, 1974 will begin to run?
At first sight the problem does not seem all that obvious. The first reaction that springs to mind is to say that the Judge was referring to the total of the sentences imposed to that point, that is, to all the time during which plaintiff was to be impris oned. This is the position taken by the Chief of Sentence Administration in the aforementioned Exhibit P-12, and this position is defended by
counsel for the defendant. It might be said that this position is based not only on what one might call the "normal" meaning which a layman would attach to the words used—assuming, it should be pointed out in passing; that the word "sentence" is to be interpreted in the sense of "penalty" and not of "judgment"—but it also seems to be based on a statute, section 14 of the Parole Act, R.S.C. 1970, c. P-2, which reads as follows:
14. (1) Where, either before, on or after the 26th day of August 1969,
(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,
he shall, for all purposes of this Act, the Penitentiary Act and the Prisons and Reformatories Act, be deemed to have been sentenced, on the day on which he is so sentenced in the circumstances described in paragraph (a), or on the day on which he was sentenced to the term of imprisonment he is then serving in the circumstances described in paragraph (b), to a single term of imprisonment commencing on that day and ending on the last day that he would be subject to confinement under the longest of such sentences or under all of such sentences that are to be served one after the other, whichever is the later day.
However, there is another possible interpretation of this sentence of January 14, which appears plausible when we examine another statutory provision, section 137 of the Criminal Code, the first subsection of which read as follows in 1974:
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 sen tenced for that escape, serve the portion of the term of impris onment 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. [My emphasis.]
This provision of the Criminal Code was held on many occasions to be mandatory, especially in so far as it relates to the order in which sentences imposed must be served. A sentence for escape must necessarily be served first, other sentences being suspended during this time, and the judge imposing sentence certainly cannot decide other wise. (Regina v. Novak (1974) 17 C.C.C. (2d) 531; Ex parte Langlois (1974) 19 C.C.C. (2d) 382; Ex parte Lowe (1972) 7 C.C.C. (2d) 458;
Godon v. Canadian Penitentiary Service [1975] F.C. 77; Hudon v. Marcoux, a decision of the Court of Appeal of Quebec, November 15, 1975, unreported.) Thus, despite the language used in the sentence of March 1, 1973, ([TRANSLATION] "Two years' imprisonment to be served consecu tively to any other sentence he is currently serv ing"), it is clear that the two-year sentence imposed for escape must be served immediately and the other sentences which the inmate was serving at the time of his escape will not begin to run and take effect again until after it has been served. The result of this is that, legally, the sentence which on January 14, 1974 Longpré was supposed to serve and was in fact serving was the two-year sentence imposed on him on March 1 for escape, and we have no grounds for thinking that the Judge who imposed the sentence on that day had forgotten this.
It will be seen at this point that two interpreta tions are possible, and each of them is based on a statute. I hasten to state, however, that in my opinion neither of the statutes provides a way out of the impasse. The scope of section 14 of the Parole Act was clearly defined by the legislator and manifestly was not enacted for the purpose of providing a definitive solution to the problems of interpretation which might be raised by the word ing of a sentence, and in my opinion the references to the Parole Act to be found without any further explanation in section 137 of the Criminal Code have little bearing on this. The said section 137 seems to have been enacted precisely for the pur pose of countering, in cases where an inmate escapes, the rule that in principle several sentences shall be served concurrently (Criminal Code, sec tion 624), and at the same time of establishing special rules for calculating the days of remission which may then be allowed on each of the succes sive sentences. I think we would be exaggerating its importance if we saw in it a substantive rule which a judge, in pronouncing sentence, should not have omitted to take into account.
Nor do the precedents indicate a clear choice. Counsel for the plaintiff relied on two previous decisions, Whittaker (C.A. Sask., March 12, 1971, unreported) and Langlois (cited above), which placed a strict interpretation on section 137 of the
Criminal Code (or its predecessor to the same effect, section 120 of the former Code) to resolve a similar difficulty to that before the Court. How ever, in both cases the wording of the sentence which it was necessary to define differed from the wording of the sentences we are trying to interpret here, and this seriously reduces the weight they might be given.
In my opinion, the arguments which may be made in support of either of the two possible interpretations are valid. It is interesting to note in this respect that "the Chief of Sentence Adminis tration" stated in an explanatory note dated May 14, 1976, which he sent to counsel for the plaintiff (Exhibit P-13), that he could not follow Whitta- ker—and read the sentence of January 14, 1974 strictly in the light of section 137 of the Criminal Code—simply on the ground that the two-year penalty imposed for the escape by the previous sentence of March 1 was treated as having to be served, not as the statute provides (which was the case in Whittaker) but [TRANSLATION] "consecu- tively to any other sentence he is currently serv ing". Nonetheless, it seems to me that it is precise ly this wording of the sentence of March 1 which provides the best argument for the interpretation defended by plaintiff, an argument taken from what was said by the Judge on January 14. Instead of relying on the formula used by his predecessor and saying "Twenty-five years consecutively to any other sentence", the Judge said [TRANSLA- TION] "Twenty-five years consecutively to the sen tence he is currently serving".
In any case, I am not convinced that either of these interpretations should be dismissed on the ground that it is less plausible or reasonable than the other. The Judge expressed himself on January 14, 1974 in a definitely ambiguous manner, and since he cannot now be called on to explain what he meant, a choice must be made between the two possible interpretations. In effect, this choice is only theoretical because in a situation of this kind it is not possible to disallow the interpretation which is more favourable to the plaintiff. This results from the application of a principle which is primarily relied on in interpreting statutes, but which must also be applied when a criminal sen tence is being interpreted. The courts have never
departed from this principle, and Dickson J. recently restated it in Marcotte v. Deputy Attor ney General of Canada ([1976] 1 S.C.R. 108 at 115):
Even if I were to conclude that the relevant statutory provi sions were ambiguous and equivocal—a conclusion one could reach without difficulty ... I would have to find for the appellant in this case. It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambigui ties 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. If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication.'
Judgment will therefore be rendered to the effect that the sentence of twenty-five years imposed on plaintiff Pierre Longpré on January 14, 1974 was consecutive to the sentence of two years imposed on him on March 1, 1973, and that accordingly, the sole and total prison sentence which must be served by plaintiff Pierre Longpré, from March 1, 1973, is twenty-seven years, to which must be added six months as the result of a new sentence for escape which was imposed subsequently.
' Concerning the application of this principle to a criminal sentence, see Ex parte Langlois (cited above) and Foster v. The Queen (1976) 34 C.R.N.S. 293.
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