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T-1356-82
Eddy Kula (Applicant) v.
Raymond Picard, in his capacity as Sentence Administrator of the Archambault Maximum Security Institution and the Queen in right of Canada (Respondents)
Trial Division, Marceau J.—Montreal, March 15; Ottawa, March 18, 1982.
Judicial review — Equitable remedies — Declarations — Parole — Applicant seeks ruling regarding remainder of prison term — Applicant released under mandatory supervi sion on July 10, 1974 — Release suspended August 20, 1974 — Sentenced to five years' imprisonment for one offence and to varying terms to be served concurrently with five-year sentence for other offences on September 25 — Mandatory supervision revoked when appeal periods expired — Judge said nothing about time remaining to be served on earlier sentences — Whether remanet should be added to new sentence or served concurrently — Authorities applied s. 21 of Parole Act (as it was in 1974) which provided that when parole forfeited by conviction for indictable offence, term of impris onment shall be unexpired remainder of old sentence in addi tion to new sentence — Applicant submits that application of s. 21 alters sentence imposed by Judge since s. 649 of Criminal Code provides that sentence begins to run when imposed — Application dismissed — S. 649 subject to contrary provisions in other enactments — No conflict between two sections since s. 21 does not attempt to determine starting point of total term of imprisonment — Application of s. 21 mandatory, but left intact sentence imposed by Judge — Application procedure may be inappropriate for relief sought — Parole Act, R.S.C. 1970, c. P-2, s. 21, as amended by R.S.C. 1970 (1st Supp.), c. 31, s. 2 — Criminal Code, R.S.C. 1970, c. C-34, s. 649.
MOTION. COUNSEL:
Claude Lanctôt for applicant. Claude Joyal for respondents.
SOLICITORS:
Lanctôt, Dessureault, Palnick & Gauthier, Laprairie, for applicant.
Deputy Attorney General of Canada for respondents.
The following is the English version of the reasons for order rendered by
MARCEAU J.: Applicant is at present an inmate in the Archambault Institution at Ste-Anne-des- Plaines in the Province of Quebec. His motion, entitled [TRANSLATION] "for relief in accordance with section 18 of the Federal Court Act", is essentially seeking to obtain a Court ruling regard ing the time he still has to serve in prison. A notice from the Chief Sentence Administrator indicates, in his submission, that the authorities calculated this time incorrectly, and he would like the situa tion to be clarified.
I have serious doubts as to whether this sum mary procedure is strictly admissible in view of the conclusions sought: a declaratory judgment is not obtained by motion. However, I shall overlook the procedural difficulty in order to dispose of the application on its merits: it is in applicant's interest to know at once that his interpretation is not admissible.
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 impris onment 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 abrupt ly 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"? For the persons responsible for administering sen tences, the answer to the question was contained in a section of the Parole Act, as it was in 1974 (R.S.C. 1970 (1st Supp.), c. 31), section 21, which read as follows:
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 indict able offence is imposed, equal to the aggregate of
(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 remis sion, then standing to his credit,
(b) the term, if any, to which he is sentenced upon conviction for the indictable offence, and
(e) any time he spent at large after the sentence for the indictable offence is imposed except pursuant to parole granted to him after such sentence is imposed,
minus the aggregate of
(d) any time before conviction for the indictable offence when the parole so forfeited was suspended or revoked and he was in custody by virtue of such suspension or revocation, and
(e) any time he spent in custody after conviction for the indictable offence and before the sentence for the indictable offence is imposed.
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.
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 sen tence must begin to run immediately on the day it is imposed, not at a later date, and the administra tion cannot arrogate to itself the right to alter a sentence imposed by a judge.
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 enact ment 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 disre gard 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.
This motion cannot be allowed. Applicant's arguments are without basis; none of the remedies which he has sought expressly or tacitly can be granted.
ORDER
The motion is dismissed with costs.
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