Judgments

Decision Information

Decision Content

T-5215-8(
Jean Thelma Keeler, Administratrix of the Estat( of David Thompson (Plaintiff)
v.
The Queen (Defendant)
Trial Division, Mahoney J.—Toronto, June 14 and 16, 1982.
Crown — Action for damages — False imprisonment ana negligence — Application under Rule 474 to determine ques tion of law — Deceased sentenced in 1965 to 10 years imprisonment; released on parole in 1968; charged with rap( and attempted rape in 1969; convicted in May 1969 of rap( and indecent assault and sentenced, in September 1969, to 1l years for rape and, for indecent assault, to 2 years to rur consecutively to the 12 — Under s. 13 of Parole Act in effect on date of convictions, parole 'forthwith forfeited" upon con viction — Under new s. 13 in force on date of sentencing, parole deemed to be forfeited on date offence committed — Pursuant to s. 17 of Act, sentence served consecutive to reme- nant of original sentence — Sentence properly recalculated — Parole forfeited by conviction for rape, not deemed forfeited by conviction for indecent assault — New s. 13 not retroactive — No intention of Parliament to construe s. 13 in retrospective terms — Twelve-year sentence required to be served consecu tive to remenant of original sentence — Parole Act, S.C. 1958, c. 38, ss. 13, 17 — Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c. 38, s. 101 — Federal Court Rule 474.
APPLICATION. COUNSEL:
James Fyshe for plaintiff.
Robert W. Hubbard for defendant.
SOLICITORS:
James Fyshe, Toronto, for plaintiff.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment rendered in English by
MAHONEY J.: This is an action for damages for false imprisonment and negligence. The Court is asked, pursuant to Rule 474, to determine the following question of law:
On the basis of the agreed statement of facts, was the sentence of David Thompson properly recalculated in relation to his convictions for the 1969 offences?
Thompson was sentenced, on July 12, 1965, to a term of ten years in federal penitentiary. He was released on parole on November 29, 1968. While on parole, he was charged with attempted rape and rape, counts 1 and 2, respectively, of the indict ment. The attempted rape was alleged to have occurred on February 17, 1969 and the rape two days later. On May 20, 1969, he pleaded, firstly, guilty as charged to count 2 and, secondly, as to count 1, guilty to the reduced charge of indecent assault. His pleas were accepted and he was remanded in custody for sentencing.
At the date of the convictions, May 20, 1969, the Parole Act, 1958, hereinafter the "old Act", provided:
13. If a paroled inmate is convicted of an indictable offence, committed after the grant of parole and punishable by impris onment for a term of two years or more, his parole is thereby forthwith forfeited.
The relevant provisions of the Criminal Law Amendment Act, 1968-69 2 were proclaimed in force effective August 26, 1969. It repealed section 13 of the old Act and substituted the following:
13. (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 date on which the offence was committed. [My emphasis.]
Subsection 13(2) is not in play. 3
On September 8, 1969, Thompson was sen tenced to twelve years' imprisonment for the rape and, for the indecent assault, two years to run consecutive to the twelve. The necessary adminis trative action was then taken to return Thompson to the penitentiary to serve the remenant of his original sentence and the new ones.
'S.C. 1958, c. 38.
2 S.C. 1968-69, c. 38, s. 101.
3 Section 13 is now section 17 of R.S.C. 1970, c. P-2.
The issue is: was the parole forfeited by Thomp- son's conviction for rape, which preceded the con viction for indecent assault, or was it deemed forfeited by the conviction for indecent assault, the offence committed first? The parties have, by agreement, spared the Court the necessity of making two calculations. If his parole was forfeit ed by the first conviction, he would have been entitled to be released on April 17, 1981, at the earliest. If, however, it is deemed to have been forfeited on the date he committed the first of the offences, his earliest date of release would have been November 17, 1977. The discrepancy lies in the mandatory requirement of section 17 of both the old and new Acts 4 that the sentence for the offence, conviction of which has forfeited the parole, is to be served consecutive to the remenant of the original sentence. If the two-year sentence were the one subject of that requirement, the direction of the sentencing judge that it be served consecutive to the twelve-year sentence would not prevail and the two-year sentence would be served consecutive to the remenant while the twelve-year sentence would be served concurrent with both. That, I emphasize, is the agreed fact; I have made no judgment on whether it is a correct conclusion of law but merely accept it as such.
Thompson was convicted when the old Act was in effect and, on his first conviction, the conviction for rape, his parole was "thereby forthwith forfeit ed." The proclamation of the new Act did not, somehow, revive that parole. Section 13 of the new Act is not cast in retrospective terms and nothing in the related provisions leads one to conclude that Parliament intended it to be so construed. The pronouncement of sentence and its timing had no bearing on the forfeiture, it merely supplied the necessary numbers for an arithmetic calculation. The twelve-year sentence for rape was required to be served consecutive to the remenant of the origi nal sentence.
The answer to the question is "yes". The Court was not asked to make any order as to costs.
4 Section 17 is now section 21 of R.S.C. 1970, c. P-2.
 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.