T-1009-84
Brian James Dempsey (Plaintiff)
v.
Attorney General of Canada, Solicitor General of
Canada and Commissioner of Corrections
(Defendants)
Trial Division, Rouleau J.-Ottawa, December 19,
1984; May 13, 1985.
Criminal justice - Imprisonment - Action for declaration
Correctional Service of Canada to receive unexecuted warrants
of committal with respect to sentences for municipal by-law
contraventions and that sentences for non-payment of fines run
concurrently with penitentiary term - S. 659(2) of Criminal
Code neither referring nor applying to provincial offences
Criminal Code, R.S.C. 1970, c. C-34, s. 659 (as am. by S.C.
1974-75-76, c. 93, s. 79; 1976-77, c. 53, s. 13) - Parole Act,
R.S.C. 1970, c. P-2, ss. 7(1),(2), 20(1) (as am. by S.C. 1976-77,
c. 53, s. 31) - Interpretation Act, R.S.C. 1970, c. I-18, s.
27(2).
Penitentiaries - S. 659(2) of Criminal Code not requiring
Correctional Service of Canada to receive unexecuted warrants
of committal in relation to provincial offences of federal
inmate - Criminal Code, R.S.C. 1970, c. C-34, s. 659 (as am.
by S.C. 1974-75-76, c. 93, s. 79; 1976-77, c. 53, s. 13).
Constitutional law - Distribution of powers - Amendment
to Code s. 659(2) to cover provincial sentences would be valid
federal legislation in respect of criminal law or penitentiaries
- Incidentally affecting provincial powers over punishment of
provincial offences and prisons - Analogy to compensation
orders for crime victims notwithstanding damages within
property and civil rights - Parliament's legislative authority
dependent on Constitution Act, 1867, not on extent of federal
legislation - Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 51 (as am. by Canada Act
1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1), ss. 91(27),(28), 92(6),(15) - Criminal Code,
R.S.C. 1970, c. C-34, ss. 653,659 (as am. by S.C. 1974-75-76,
c. 93, s. 79; 1976-77, c. 53, s. 13).
This is an action for a declaration that the Correctional
Service of Canada must receive unexecuted warrants of com
mittal with respect to municipal by-law contraventions and that
the sentences therefor run concurrently with the plaintiff's
current penitentiary term. The issue is whether subsection
659(2) of the Criminal Code applies to provincial offences.
Subsection 659(2) provides that where a person who is sen
tenced to imprisonment in a penitentiary is, before the expira
tion of that sentence, sentenced to imprisonment for a term of
less than two years, he shall serve that term in a penitentiary.
Also at issue is whether subsection 659(2) is constitutionally
valid, and whether the provincial sentences should be served
consecutive to or concurrently with the plaintiffs current peni
tentiary sentence.
Held, the action should fail.
Subsection 659(2) does not extend to sentences imposed
under provincial statutes. In spite of the policy argument that
prisoners serving time in federal penitentiaries should not be
under the threat of immediate arrest upon release it would be
for Parliament to remedy this situation.
The absence of reference to provincial statutes or sentences
in subsection 659(2) indicates that Parliament did not intend to
extend its legislation to cover provincial sentences. Bedard v.
Correctional Service of Canada, [1984] 1 F.C. 193 (T.D.)
should be followed. The result in the subsequent case of Bedard
v. Directeur du Centre de Détention de Montréal (judgment
dated November 2, 1983, Quebec Superior Court, 500-36-525-
835, not reported) could not be agreed with.
No other statutory provision allows subsection 659(2) to be
interpreted as suggested by plaintiff. Subsection 7(1) of the
Parole Act refers to a sentence imposed under an "enactment
of a provincial legislature" that is to be served either `concur-
rently with" or "immediately after" the imprisonment in
respect of which the Board has exclusive jurisdiction. Section 7
does not help the plaintiff because of the absence of reference
in subsection 659(2) to enactments of provincial legislatures,
and the requirement in subsection 7(2) for provincial legislation
adopting it before it comes into effect in any province.
Although the use of "concurrently" and "immediately after the
expiration" in subsection 7(1) implies that provincial sentences
may be served in federal penitentiaries, subsection 659(2) has
not achieved such a result. Under subsection 20(1) of the
Parole Act, and a plain reading of subsection 659(2) of the
Criminal Code if a prisoner on parole from a penitentiary is
sentenced to a provincial jail and then has his parole revoked he
must be transferred back to the penitentiary. This consequence
must also be the subject of legislative remedy. Subsection
659(4), makes no reference to provincial sentences and suffers
from the same interpretation difficulties as subsection 659(2).
An amendment to subsection 659(2) to cover provincial
sentences would be valid federal legislation in relation to crimi
nal law or penitentiaries, which would only incidentally affect
provincial powers over punishment of provincial offences and
over prisons. Such an amendment would be similar to orders to
pay compensation to victims under section 653 of the Criminal
Code, which has been held valid even though the awarding of
damages is usually a matter of property and civil rights.
Subsection 27(2) of the Interpretation Act makes Criminal
Code provisions applicable to indictable and summary convic
tion offences created by other statutes, but when read with the
definition of "enactment" in section 2 does not apply to provin
cial offences. It implies that federal and provincial legislatures
must be held not to intend to legislate in derogation of their
division of constitutional powers.
The Criminal Code, including subsection 659(2), deals only
with criminal law and not provincial offences. The plaintiffs
argument about interacting systems of federal and provincial
offences is hopeless in light of subsection 7(2) of the Parole
Act. By prescribing additional jurisdiction for the Parole Board,
subsection 7(1) demonstrates that provincial offences are quite
distinct. Even that additional jurisdiction can arise only if a
provincial legislature permits it. Parliament was avoiding any
hint of trenching on provincial legislative power.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Bedard v. Correctional Service of Canada, [1984] 1 F.C.
193 (T.D.).
NOT FOLLOWED:
Bedard v. Directeur du Centre de Détention de Montréal
(judgment dated November 2, 1983, Quebec Superior
Court, 500-36-525-835, not reported).
DISTINGUISHED:
Re Dinardo and The Queen (1982), 67 C.C.C. (2d) 505
(Ont. C.A.); In re New Brunswick Penitentiary (1880),
[1875-1906] Cout. S.C. 24; Regional Municipality of
Peel v. MacKenzie et al., [1982] 2 S.C.R. 9.
CONSIDERED:
Durand c. Forget (1980), 24 C.R. (3d) 119 (Que. S.C.);
Canadian Pioneer Management Ltd. et al. v. Labour
Relations Board of Saskatchewan et al., [ 1980] 1 S.C.R.
433.
REFERRED TO:
Paul v. The Queen, [1982] 1 S.C.R. 621; R. v. Parisien
(1971), 3 C.C.C. (2d) 433 (B.C.C.A.); R. v. Garcia and
Silva, [1970] 3 C.C.C. 124 (Ont. C.A.); R. v. Roy
(1978), 45 C.C.C. (2d) 193 (Ont. C.A.); R. v. T.W.; R. v.
S., [1981] 1 W.W.R. 181 (B.C.C.A.); Marcotte v.
Deputy Attorney General of Canada et al., [1976] 1
S.C.R. 108; Turcotte v. The Queen, [1970] S.C.R. 843;
Munro v. National Capital Commission, [1966] S.C.R.
663; Carnation Company Limited v. Quebec Agricultural
Marketing Board et al., [1968] S.C.R. 238; Caloil Inc. v.
Attorney General of Canada, [1971] S.C.R. 543; Attor
ney General (Que.) v. Kellog's Co. of Canada et al.,
[1978] 2 S.C.R. 211; Reference re Upper Churchill
Water Rights Reversion Act, [1984] 1 S.C.R. 297; R. v.
Thomas Fuller Construction Co. (1985) Ltd. et al.,
[1980] 1 S.C.R. 695; Fowler v. The Queen, [1980] 2
S.C.R. 213; R. v. Zelensky, [1978] 2 S.C.R. 940; A.G.
for Canada v. A.G. for Nova Scotia, [1951] S.C.R. 31;
Proprietary Articles Trade Association v. Attorney-Gen
eral for Canada, [1931] A.C. 310 (P.C.).
COUNSEL:
Ronald R. Price, Q.C. for plaintiff.
Susan D. Clarke for defendants.
SOLICITORS:
Ronald R. Price, Q.C., Kingston, Ontario, for
plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
ROULEAU J.: This is an action for a declaration
that the plaintiff is entitled to have all unexecuted
warrants of committal arising from sentences
under provincial statutes and municipal by-laws
received by the Correctional Service of Canada
and duly executed. In short he seeks to serve all of
his prison sentences under provincial statutes in a
federal penitentiary together with the penitentiary
sentences he is now serving. He also asks for a
declaration that the sentences, under provincial
statutes arising from failure to pay municipal
fines, totalling 85 days, run concurrently with his
current penitentiary term starting on March 22,
1984, i.e., the date on which the unexecuted war
rants of committal were presented to the Correc
tional Service of Canada for execution.
I. FACTS
The parties submitted an agreed statement of
facts which I reproduce here, omitting only the
two appendices.
AGREED STATEMENT OF FACTS
1. The Plaintiff is an inmate of Kingston Penitentiary, a
correctional institution operated by the Correctional Service of
Canada, in the City of Kingston, County of Frontenac, in the
Province of Ontario.
2. The Defendant Attorney General of Canada is the repre
sentative of the Crown in Right of Canada, answerable in
actions for declaratory relief brought under section 18 of the
Federal Court Act, R.S.C. 1970, (2nd Supp.), c. 10 against a
"federal board, commission or other tribunal" as defined in
section 2 of this Act.
3. The Defendant Solicitor General of Canada is charged under
the Department of the Solicitor General Act, R.S.C. 1970, c.
S-12, with the management and direction of the Department of
the Solicitor General and the Correctional Service of Canada
(formerly the National Parole Service and the Canadian Peni
tentiary Service) and by virtue of the Act the duties, powers
and functions of the Solicitor General of Canada extend to and
include all matters over which the Parliament of Canada has
jurisdiction relating to penitentiaries and parole, not by law
assigned to any other department, branch or agency of the
Government of Canada.
4. The Defendant Commissioner of Corrections is appointed by
the Governor in Council pursuant to the authority conferred by
the Penitentiary Act, R.S.C. 1970, c. P-6 as amended, and has
in accordance with the Penitentiary Act, and under the direc
tion of the Solicitor General of Canada, the control and man
agement of the Correctional Service of Canada and all matters
connected therewith.
5. The general responsibilities of the Solicitor General and of
the Commissioner of Corrections include the management and
supervision of officials who compute sentences of inmates sen
tenced or committed to penitentiary institutions operated by the
Correctional Service of Canada. At Kingston Penitentiary,
determinations regarding the sentences of individual inmates
are made by an official of the Correctional Service of Canada
referred to as the Sentencing Administrator.
6. On January 31st, 1980, the Plaintiff was sentenced at the
Municipality of Metropolitan Toronto to prison terms totalling
twelve (12) years pursuant to convictions under the Criminal
Code, R.S.C. 1970, c. C-34, which terms are now being served
by the Plaintiff in Kingston Penitentiary.
7. The Plaintiff was conveyed to the penitentiary under the
authority of a Certificate of Sentence, a copy of which is
attached hereto as Appendix "A", issued by a Justice of the
Supreme Court of Ontario.
8. In addition to the terms of imprisonment referred to in
paragraph 6, the Plaintiff is subject to thirty-two (32) War
rants of Committal with respect to provincial offences of
municipal parking by-law contraventions in the City of
Toronto, copies of which are attached hereto as Appendix "B".
These warrants involve prison terms of a total of eighty-five
(85) days. Twenty-four of these sentences (totalling 66 days)
were handed down by a Justice of the Peace prior to the date of
the Criminal Code sentencing of January 31st, 1980; eight
sentences (totalling 19 days) were imposed after that date.
9. The Warrants of Committal with respect to the provincial
offences were issued by a Justice of the Peace, and were with
respect to default payment of fines.
10. On or about March 22nd, 1984, a Constable of the Kings-
ton Police Department attended at Kingston Penitentiary with
the thirty-two (32) warrants of committal for the imprisonment
of the Plaintiff regarding his provincial offences, and sought to
execute these warrants.
11. The officials of the Correctional Service of Canada at
Kingston Penitentiary, when presented with the said thirty-two
Warrants of Committal, refused to accept them.
II. ISSUES
The issues in this case are as follows: (1)
Whether subsection 659(2) of the Criminal Code,
R.S.C. 1970, c. C-34 [as am. by S.C. 1974-75-76,
c. 93, s. 79], requires the Correctional Service of
Canada to accept and execute warrants of commit
tal arising from sentences of less than two years
imposed on an individual for offences under pro
vincial statutes who at the time at which the
warrants of committal are presented is serving
time in a federal penitentiary. More briefly, this
question may be reduced to asking whether or not
subsection 659(2) applies to provincial offences.
(2) If the answer to question (1) is positive, it must
be asked whether subsection 659(2) is a constitu
tionally valid exercise of federal legislative powers.
(3) Finally, if the answer to the two previous
questions is positive, it must be asked whether the
sentences for the provincial offences should be
served consecutive to or concurrently with the
plaintiffs current penitentiary sentences for con
victions under the Criminal Code. The effect on
earned remission, mandatory supervision and
parole must also be explored.
III. STATUTORY PROVISIONS
The principal statutory basis for the plaintiff's
action is subsection 659(2) of the Criminal Code. I
reproduce here section 659 [as am. by S.C. 1974-
75-76, c. 93, s. 79; 1976-77, c. 53, s. 13] in its
entirety in order to show the context:
659. (1) Except where otherwise provided, a person who is
sentenced to imprisonment for
(a) life,
(b) a term of two years or more, or
(c) two or more terms of less than two years each that are to
be served one after the other and that, in the aggregate,
amount to two years or more,
shall be sentenced to imprisonment in a penitentiary.
(2) Where a person who is sentenced to imprisonment in a
penitentiary is, before the expiration of that sentence, sentenced
to imprisonment for a term of less than two years, he shall be
sentenced to and shall serve that term in a penitentiary, but if
the previous sentence of imprisonment in a penitentiary is set
aside, he shall serve that term in accordance with subsection
(3).
(3) A person who is sentenced to imprisonment and who is
not required to be sentenced as provided in subsection (1) or
(2) shall, unless a special prison is prescribed by law, be
sentenced to imprisonment in a prison or other place of confine
ment within the province in which he is convicted, other than a
penitentiary, in which the sentence of imprisonment may be
lawfully executed.
(4) Where a person is sentenced to imprisonment in a
penitentiary while he is lawfully imprisoned in a place other
than a penitentiary he shall, except where otherwise provided,
be sent immediately to the penitentiary and shall serve in the
penitentiary the unexpired portion of the term of imprisonment
that he was serving when he was sentenced to the penitentiary
as well as the term of imprisonment for which he was sentenced
to the penitentiary.
(5) Where, at any time, a person who is imprisoned in a
prison or place of confinement other than a penitentiary is
subject to two or more terms of imprisonment, each of which is
for less than two years, that are to be served one after the other,
and the aggregate of the unexpired portions of those terms at
that time amounts to two years or more, he shall be transferred
to a penitentiary to serve those terms; but if any one or more of
such terms is set aside and the unexpired portions of the
remaining term or terms on the day on which he was trans
ferred under this section amounted to less than two years, he
shall serve that term or terms in accordance with subsection
(3).
(6) For the purposes of this section, where a person is
sentenced to imprisonment for a definite term and an indeter
minate period thereafter, such sentence shall be deemed to be
for a term of less than two years and only the definite term
thereof shall be taken into account in determining whether he is
required to be sentenced to imprisonment in a penitentiary or to
be committed or transferred to a penitentiary under subsection
(5).
(6.1) Where, either before or after the coming into force of
this subsection, a person has been sentenced, committed or
transferred to a penitentiary, otherwise than pursuant to an
agreement made under subsection 15(1) of the Penitentiary
Act, any indeterminate portion of his sentence shall, for all
purposes, be deemed not to have been imposed.
(7) For the purposes of subsection (3) "penitentiary" does
not, until a day to be fixed by proclamation of the Governor in
Council, include the penitentiary mentioned in section 82 of the
Penitentiary Act, chapter 206 of the Revised Statutes of
Canada, 1952.
Certain other statutory provisions cited by the
parties in argument will be reproduced where
necessary.
IV. PLAINTIFF'S ARGUMENT
Counsel for the plantiff began by admitting that
there is a conflict between the recent decision of
Muldoon J. in Bedard v. Correctional Service of
Canada, [ 1984] 1 F.C. 193 (T.D.), and Bedard v.
Directeur du Centre de Détention de Montréal, a
subsequent decision of the Quebec Superior Court
involving the same plaintiff (unreported judgment,
500-36-525-835, November 2, 1983). I am urged
to adopt the approach taken by the Quebec Supe
rior Court and also follow dicta in Durand c.
Forget (1980), 24 C.R. (3d) 119 (Que. S.C.), to
the effect that subsection 659(2) allows provincial
warrants to be received in federal penitentiaries.
Counsel for the plaintiff then presented a leng
thy policy argument in favour of the interpretation
of subsection 659(2) which he favours. It was
repeatedly stated that these policy considerations
only support the plaintiffs arguments in law and
are not directly relied upon. The crux of the policy
argument is that where it can be avoided, there
should be no outstanding warrants of committal
against a prisoner at the time of his release. The
threat of rearrest and of further incarceration
stemming from outstanding warrants of committal
is said to undermine prisoner discipline, thwart
rehabilitation, and be generally against good car-
ceral practice. For this proposition counsel for the
plaintiff cited a variety of authorities, including:
Paul v. The Queen, [1982] 1 S.C.R. 621; R. v.
Parisien (1971), 3 C.C.C. (2d) 433 (B.C.C.A.);
and R. v. Garcia and Silva, [ 1970] 3 C.C.C. 124
(Ont. C.A.).
The main legal foundation of the plaintiffs case
is the above-mentioned Quebec Superior Court
decision Bedard v. Directeur du Centre de Déten-
tion de Montréal. Counsel recognized the careful
consideration given to the question in Bedard v.
Correctional Service of Canada, but contends that
not all the arguments in favour of his client's
position were before Muldoon J. in that case.
The first argument made by counsel for the
plaintiff is that federal and provincial offences and
the punishments contemplated for them do not
constitute two entirely different systems which do
not interact. As support for this proposition he
cites subsection 7(1) of the Parole Act, R.S.C.
1970, c. P-2:
7. (1) Where, in the case of a person sentenced to a term of
imprisonment in respect of which the Board has exclusive
jurisdiction to grant, refuse to grant or revoke parole, that
person is at the time of such sentence or at any time during
such term of imprisonment sentenced to a term of imprison
ment imposed under an enactment of a provincial legislature
that is to be served either concurrently with or immediately
after the expiration of the term of imprisonment in respect of
which the Board has exclusive jurisdiction, the Board has,
subject to this Act, exclusive jurisdiction and absolute discre
tion to grant, refuse to grant or revoke parole in relation to both
such terms of imprisonment.
(2) This section shall come into force in respect of any
province on a day to be fixed by proclamation made after the
passing of an Act by the legislature of the province named in
the proclamation authorizing the Board to exercise the addi
tional jurisdiction described in subsection (1).
Counsel for the plaintiff also argues that the
words "concurrently" and "immediately after the
expiration" indicate that Parliament contemplates
that terms of imprisonment for provincial offences
may be served in federal penitentiaries. By infer
ence, it is argued that subsection 659(2) also con
templates the serving of provincial sentences in
federal penitentiaries.
The second argument in favour of viewing sub
section 659(2) as covering provincial sentences is
that a prisoner released on parole from a peniten
tiary who then commits a provincial offence for
which he is sentenced to a period of incarceration
and has his parole revoked must be sent to a
federal penitentiary. For this proposition counsel
for the plaintiff relies on section 20 of the Parole
Act' and the decision of the Ontario Court of
Appeal in Re Dinardo and The Queen (1982), 67
C.C.C. (2d) 505. It is the plaintiff's view that in
R.S.C. 1970, c. P-2, as am. by S.C. 1976-77, c. 53, s. 31.
The relevant subsection is 20(1), which reads as follows:
20. (1) Upon revocation of his parole, an inmate shall be
recommitted to the place of confinement from which he was
allowed to go and remain at large at the time parole was
granted to him or to the corresponding place of confinement
for the territorial division within which he was apprehended.
order to avoid having a prisoner shunted from jail
to penitentiary if and when parole is revoked,
subsection 659(2) of the Criminal Code has the
automatic effect of providing that the new provin
cial sentence be served in the same institution from
where the prisoner was paroled. Counsel admits
that Re Dinardo did not involve any provincial
offence, but rather a Criminal Code offence for
which a sentence of 18 months was handed down,
with a warrant of committal to a provincial institu
tion. Furthermore, parole had not been revoked in
that case.
Similarly, it is argued that a person serving time
in a provincial prison (including, it is said, time for
a provincial offence) who is sentenced to two years
or more under the Criminal Code must, by subsec
tion 659(4), be sent to a federal penitentiary.
Counsel for the plaintiff says that balance of the
provincial sentence must be concurrently or con
secutively served in the penitentiary as well. This
result is said to be the only possible one because
there is no Criminal Code provision for return to a
provincial prison at the end of a term of two years
or more. Furthermore, it is submitted that unless
both terms are served in the penitentiary there
would be a loss of earned remission and confusion
as to mandatory supervision and parole. The
proper result in those circumstances is claimed to
be full application of the provisions of the Parole
Act to both federal and provincial sentences.
Counsel concluded this part of his argument by
saying that there are good policy reasons and a
number of statutory indices which support the
view that subsection 659(2) encompasses sentences
for provincial offences. It is argued that the word
ing of the subsection is sufficiently broad to sup
port this view and that Paul v. The Queen (supra),
at pages 662-665, is authority for the proposition
that, in interpreting the Criminal Code, the Court
should look to the overall purpose of the provisions
in question.
Counsel for the plaintiff, having concluded that
subsection 659(2) extends to cover sentences under
provincial statutes, then briefly discussed the con
stitutional issue. His position is that subsection
659(2) is a valid exercise of the federal powers
over criminal law and penitentiaries.
In support of this view reference was made to
Canadian Pioneer Management Ltd. et al. v.
Labour Relations Board of Saskatchewan et al.,
[1980] 1 S.C.R. 433. The essential question in that
case was whether a trust company and an insur
ance company were subject to provincial labour
relations law or rather under federal jurisdiction
covering banks and banking. Counsel for the plain
tiff made particular mention of an obiter passage
from the reasons of Beetz J. (writing for himself
and five others) as an indication that the line of
demarcation between federal and provincial juris
diction is in part determined by the federal legisla
tion on the subject. The passage in question at
pages 468-469 reads as follows:
Only one serious objection to the institutional approach can
be raised and it has been raised by counsel for the Attorney
General of Canada. It is based on the exclusiveness of federal
legislative powers relating to Banking and the Incorporation of
Banks. It was contended that provincial legislative jurisdiction
and the extent and applicability of provincial legislation cannot
depend on the abstinence of Parliament from legislating to the
full limit of its exclusive powers. The Union Colliery and
Commission du Salaire Minimum cases were relied upon.
I do not think this objection is valid in this case.
Legislative jurisdiction involves certain powers of definition
which are not unlimited but which, depending on the particular
manner in which they are exercised, may affect other jurisdic
tional fields.
For instance, Parliament has exclusive legislative jurisdiction
over the Establishment, Maintenance, and Management of
Penitentiaries under s. 91.28 of the Constitution, and each
Province has exclusive legislative jurisdiction over the Estab
lishment, Maintenance and Management of Public and Refor
matory Prisons in and for the Province, under s. 92.6. At
present, the line of demarcation between the two appears to
depend in part upon federal legislation such as s. 659 of the
Criminal Code.
Another example is provided by the legal status of the
Eskimo inhabitants of Quebec. They are not Indians under the
Indian Act, R.S.C. 1970, c. I-6, s. 4(1), but they are Indians
within the contemplation of s. 91.24 of the Constitution: Refer
ence as to whether 'Indians" in s. 91(24) of the B.N.A. Act
includes Eskimo inhabitants of the Province of Quebec ([1939]
S.C.R. 104). Should Parliament bring them under the Indian
Act, provincial laws relating to descent of property and to
testamentary matters would cease to apply to them and be
replaced by the provisions of the Indian Act relating thereto.
Parliament having chosen to exercise its jurisdiction over
Banking and the Incorporation of Banks from an institutional
aspect rather than in functional terms, as was perhaps unavoid
able, did not necessarily exhaust its exclusive jurisdiction; but it
left institutions which it did not characterize as being in the
banking business to the operation of provincial labour laws.
Mention was also made of the constitutional
reference In re New Brunswick Penitentiary
(1880), [1875-1906] Cout. S.C. 24. That case
involved a claim by the provincial government that
post-confederation federal legislation limiting
incarceration in federal penitentiaries to those
serving terms of two years or more placed an
unconstitutional financial burden on provincial
institutions. According to counsel for the plaintiff
the case stands for the proposition that it is open to
Parliament, under subsections 91(27) and (28) of
the Constitution Act, 1867 [30 & 30 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1)] to deter
mine who will be received in federal penitentiaries
and that this power cannot be limited by provincial
legislation.
Counsel for the plaintiff concluded his submis
sions on the constitutional issue by referring to R.
v. Roy (1978), 45 C.C.C. (2d) 193 (Ont. C.A.)
and R. v. T.W.; R. v. S., [1981] 1 W.W.R. 181
(B.C.C.A.). These cases are taken as authority for
the proposition that federal and provincial legisla
tion in the field of incarceration is necessarily
complex and interrelated and that there may be
complementary legislation without any violation of
the federal and provincial spheres of legislative
authority.
Finally, the Court is urged, in the face of
ambiguity, to adopt the interpretation of subsec
tion 659(2) which is most favourable to the liberty
of the subject as suggested by Marcotte v. Deputy
Attorney General of Canada et al., [ 1976] 1
S.C.R. 108, at page 115, and Turcotte v. The
Queen, [1970] S.C.R. 843.
V. DEFENDANTS' ARGUMENTS
Counsel began by responding to the policy argu
ments urged on behalf of the plaintiff. It is
acknowledged that there is concern in both the
legislatures and the courts for avoiding situations
where a prisoner is released from a penitentiary
only to be rearrested because there is another
sentence hanging over his head. Counsel would
add, making reference to cases cited in Durand c.
Forget (supra) and to certain comments by Lamer
J. in Paul v. The Queen (supra), that there is
considerable concern for certainty in sentencing
and emphasis on the total period of incarceration.
The substance of the argument on behalf of the
defendants, having regard to both the words of
subsection 659(2) and to the general principles of
constitutional law, is that on a correct interpreta
tion the subsection does not extend to sentences
imposed under provincial statutes.
The first submission for the defendants was that
subsection 659(2) does not mention provincial
offences and that Parliament would have specifi
cally made such reference if it had been intended.
Counsel submits that section 7 of the Parole Act is
a different case because specific mention is made
of provincial offences. As support for her view of
subsection 659(2), counsel cites subsection 27(2)
of the Interpretation Act, R.S.C. 1970, c. I-23.
Generally speaking, subsection 27(2) makes
Criminal Code provisions applicable to indictable
and summary offences created by other federal
statutes, but, when read with the definition of
"enactment" in section 2 of the Interpretation Act,
does not apply to provincial offences.
The second argument of counsel for the defend
ants is that subsection 659(2) does not mention
provincial offences because to do so would be to
risk trenching on exclusive provincial authority
over the imposition of penalties for violation of any
law of the province (Constitution Act, 1867, sub
section 92(15)). Relying on the principle that stat
utes should be construed to be constitutionally
valid, it is urged that subsection 659(2) be viewed
as not extending to provincial offences. It is how
ever suggested that there could be federal-provin
cial cooperation allowing provincial sentences to be
served in federal penitentiaries.
In support of this view this Court is urged to
follow the decision of Muldoon J. in Bedard v.
Correctional Service of Canada (supra) and find
that neither subsection 659(2) of the Criminal
Code, nor any other text of law imposes a duty on
federal penitentiary officials to receive and execute
warrants of committal for provincial offences. The
Court's attention is particularly directed to com
ments at pages 198 and 199 of that decision which
are said to indicate that some sort of provincial
cooperation or delegation would be required to
allow subsection 659(2) to extend to provincial
offences.
Argument for the defendants closed with discus
sion of the two cases which go against their posi
tion. It is urged that these cases are not based on
sound reasoning and should not be followed.
Dealing first with Durand c. Forget (supra),
counsel for the defendants argued that concern for
avoiding delay in the serving of a sentence for
provincial offences brought the Court in that case
to consider subsection 659(2) as being applicable
to provincial sentences. It is pointed out that this
reading of subsection 659(2) is simply asserted to
be intra vires Parliament without support of con
stitutional authority or argument (ibid., at page
124).
The final object of the defendants' argument
was the decision in Bedard v. Directeur du Centre
de Détention (supra). This Court is urged to reject
that case because the interpretation at page 2 of
subsection 659(2) as being [TRANSLATION] "flex-
ible enough to permit an inmate to serve sentences
of less than two years in a federal penitentiary" is
without authority or reasoning. It is further argued
that the Judge's stated fear that minor breaches of
municipal by-laws will be allowed to extend a
federal penitentiary term is unfounded because
subsection 659(2), if it does not extend to provin
cial offences, would not, in effect, extend a peni
tentiary term.
In reply to the arguments of the defendants
counsel for the plaintiff states that subsection 3(3)
of the Interpretation Act, R.S.C. 1970, c. I-23,
preserves not inconsistent rules of construction.
This Court is then invited to adopt the view (Re
Dinardo, supra) that subsection 659(2) is in pari
materia with certain provisions of the Parole Act
and with subsection 659(4) of the Criminal Code
and that these statutory texts should be regarded
as a complete system to be interpreted in a mutu
ally consistent fashion. Such an interpretation, it is
urged, would be to find subsection 659(2) to be
applicable to provincial sentences. Any other inter
pretation is said to be inflexible and unworkable.
VI. DISPOSITION
After having carefully considered the arguments
and authorities submitted by both parties I have
reached the conclusion that subsection 659(2)
cannot be regarded, as it is presently worded, as
extending to sentences imposed under provincial
statutes. It is not without some regret that I have
come to this conclusion, especially in view of the
cogent policy argument presented by counsel for
the plaintiff to the effect that wherever possible
prisoners should not serve time in federal peniten
tiaries under the threat of being immediately taken
into custody upon their release. However, I have
not been convinced that the subsection in question
will tolerate the interpretation urged by the plain
tiff. It would be for Parliament to remedy this
situation if it sees fit to do so.
I have reached this conclusion mainly on the
basis of a plain reading of the subsection. Subsec
tion 659(2) makes no reference to provincial stat
utes or sentences thereunder. I think that such
mention would be present if Parliament had
intended to extend its legislation to cover provin
cial sentences under certain circumstances. In this
regard I am in agreement with the decision of
Muldoon J. in Bedard v. Correctional Service of
Canada (supra). I do not think that the fact that
mandamus was sought in that case, while the
plaintiff only seeks a declaration in the instant
matter, is a sufficient basis for distinguishing the
two.
No other statutory provision has been brought
to my attention which allows subsection 659(2) to
be interpreted as the plaintiff would have it. Coun
sel for the plaintiff made extensive and learned
reference to a variety of sections of the Criminal
Code and to other federal statutes. I will briefly
comment on some of the arguments drawn by the
plaintiff from those sections.
Section 7 of the Parole Act is not, in my view, of
any help to the plaintiff. Subsection 7(1) makes
specific mention of "an enactment of a provincial
legislature" and such words are conspicuously
absent in subsection 659(2). Furthermore, subsec
tion 7(2) of the Parole Act, not mentioned by
counsel for the plaintiff, further distinguishes the
Parole Act provision from subsection 659(2) of the
Criminal Code by stipulating that it will only
come into effect in any given province after that
province adopted appropriate legislation. I will
have more to say about the constitutional issues in
this case. Counsel for the plaintiff also points out
the words "concurrently" and "immediately after
the expiration" in subsection 7(1) of the Parole
Act. These words do indeed seem to imply that
provincial sentences may be served in federal peni
tentiaries, but I still do not think that such a result
has been achieved by subsection 659(2) of the
Criminal Code.
It is true that subsection 20(1) of the Parole Act
may produce strange consequences if a prisoner on
parole from a penitentiary is sentenced to a provin
cial jail and then has his parole revoked. On the
reading of subsection 659(2) the prisoner would
then have to be transferred back to the penitentia
ry. This may be a necessary complication of a
federal system, but might also be remedied by
appropriate legislative clarification of subsection
659(2).
The final substantive aspect of the argument for
the plaintiff was that subsection 659(4) of the
Criminal Code is an indication that subsection
659(2) should be interpreted as extending to
include sentences under provincial statutes. How
ever, I think that subsection 659(4), which makes
no reference to provincial sentences, simply res
tates the interpretation difficulties posed by sub
section 659(2) and does not shed any new light on
the matter.
In summary then, I would follow the decision of
Muldoon J. in Bedard v. Correctional Service of
Canada (supra) in so far as it was decided therein
that subsection 659(2) of the Criminal Code does
not have the effect of authorizing or obliging
federal penitentiary officials to receive and execute
warrants of committal outstanding against prison
ers already in the federal penitentiary system. By
this conclusion I am forced to disagree with the
result in the subsequent case of Bedard v. Direc-
teur du Centre de Détention de Montréal (supra).
In view of the conclusion I have reached it is not
strictly necessary for me to deal with the other two
issues raised by this case. However, I would like to
briefly comment on the question of the constitu
tional authority of Parliament to amend subsection
659(2), if it saw fit to do so, in such a way as to
require that sentences imposed under provincial
statutes on a prisoner in a federal penitentiary be
served in the federal penitentiary system.
To put it boldly, I think that appropriately
worded legislation with the above-described effect
would be intra vires Parliament without any need
for provincial delegation. However, my reasons for
holding this view do not entirely coincide with the
approach suggested by counsel for the plaintiff.
The Constitution Act, 1867 endowed both levels
of government with powers in relation to the crea
tion of offences and the imposition and execution
of penalties for those offences. Parliament has
authority over the criminal law (Constitution Act,
1867, subsection 91(27)) and over penitentiaries
(subsection 91(28)). Similarly, the provinces have
authority to impose penalties, including imprison
ment, for the enforcement of provincial laws (sub-
section 92(15)) and over provincial prisons (sub-
section 92(6)). Generally speaking these powers
are exclusive (Hogg, Constitutional Law of
Canada (1977), at pages 95-96). However, that is
not the end of the matter.
In argument, counsel for the defendants barely
addressed the constitutional question at all and
counsel for the plaintiff urged that I accept his
view as the correct result on the basis of suspect
constitutional reasoning. It is not because there is
little case law on the penitentiary and prisons'
powers that there are no applicable constitutional
principles.
An amendment to subsection 659(2) to cover
provincial sentences would, in my opinion, be valid
federal legislation in relation to criminal law or
penitentiaries or both which would only inciden
tally affect provincial powers over punishment of
provincial offences and over prisons. (For elucida
tion of the ancillary doctrine see: Munro v.
National Capital Commission, [1966] S.C.R. 663,
at page 671; Carnation Company Limited v.
Quebec Agricultural Marketing Board et al.,
[1968] S.C.R. 238, at pages 252-253; Caloil Inc.
v. Attorney General of Canada, [1971] S.C.R.
543, at pages 549-551; Attorney General (Que.) v.
Kellog's Co. of Canada et al., [1978] 2 S.C.R.
211, at pages 222-227; and, Reference re Upper
Churchill Water Rights Reversion Act, [1984] 1
S.C.R. 297, at page 332.) As long as this impact
on provincial powers was truly necessary for the
creation of a coherent, just and effective system of
rules governing the serving of sentences in federal
penitentiaries it would be valid federal legislation
(R. v. Thomas Fuller Construction Co. (1958)
Ltd. et al., [1980] 1 S.C.R. 695, at page 713;
Fowler v. The Queen, [1980] 2 S.C.R. 213, at
page 226; and Regional Municipality of Peel v.
MacKenzie et al., [1982] 2 S.C.R. 9, at pages
17-19).
The case of Regional Municipality of Peel v.
MacKenzie et al. (supra) deserves some comment.
In that case subsection 20(2) of the Juvenile Deli-
quents Act, R.S.C. 1970, c. J-3, was held ultra
vires because it imposed a financial burden on a
provincial municipal corporation, because it did
not relate directly to punishment of criminal
offences and generally because it was unnecessary
to the effectiveness of the overall scheme of federal
legislation. In contrast, subsection 659(2), if
amended to apply to provincial sentences, would
actually lighten the financial burden on the prov
ince, would relate directly to the serving of time
and parole for federal offences and could be
viewed as necessary to assure the coherence,
smooth operation, fairness and justice of the over
all system of punishment for federal sentences.
In my view, the amendment of subsection
659(2) to cover provincial sentences in certain
limited circumstances would be rather like orders
to pay compensation to victims under section 653
of the Criminal Code. This scheme has been held
valid even though the awarding of damages is
usually a provincial matter of property and civil
rights (R. v. Zelensky, [1978] 2 S.C.R. 940, at
pages 955-961).
I have said that it is my view that counsel for
the plaintiff reached the correct constitutional con
clusion for the wrong reasons. I would like to
elaborate. If the passage I have quoted (at pages
227-228 herewith) from Canadian Pioneer Man-
agement Ltd. et al v. Labour Relations Board of
Saskatchewan et al. (supra) stands for the propo
sition that federal legislative authority over the
way time is served for provincial offences depends
on the extent of the federal legislation, I think it is
wrong. The extent of legislative authority of the
federal government depends on the proper reading
and interpretation of the Constitution Act, 1867. I
prefer however to read the whole of the passage as
based on the double aspect of doctrine and federal
paramountcy.
Finally, I would like to say that In re New
Brunswick Penitentiary (supra) makes no mention
of provincial offences and applies only to federal
sentences of less than two years.
Subsection 27(2) of the Interpretation Act
implies that our federal and provincial legislatures
must be held not to intend to legislate in deroga
tion of their division of constitutional powers.
Criminal law and provincial offences are derived
from separate and distinct heads of legislative
powers, the criminal law from section 91 head 27
and provincial offences from section 92, head 15 in
the Constitution Act, 1867. One legislative author
ity cannot delegate its powers to the other legisla
tive authority, nor can they receive legislative
power from the other (A.G. for Canada v. A.G. for
Nova Scotia, [1951] S.C.R. 31).
The national scope of the criminal law is very
wide (Proprietary Articles Trade Association v.
Attorney-General for Canada, [1931] A.C. 310
(P.C.)), but its actual scope is confined to the
provisions of the legislation which Parliament has
enacted, intra vires, as criminal law. The Criminal
Code, including subsection 659(2) purports to deal
only with criminal law and not provincial offences.
The argument about interacting systems would be
a little better without subsection 7(2) of the Parole
Act. As it is, it is hopeless. Has Ontario passed a
law contemplated in subsection 7(2)? In fact sub
section 7(1) demonstrates that as matters stand
provincial offences are quite distinct, if not, it
would hardly be necessary to prescribe additional
jurisdiction for the Parole Board at all. But even
that additional jurisdiction can arise only if a
provincial legislature permits it. Here Parliament
is scrupulously avoiding any hint of trenching on
clear provincial legislative power distinctly pro
vided under section 92, head 15.
Subsection 659(2) of the Criminal Code simply
does not contemplate, nor mention, the serving of
terms of imprisonment imposed pursuant to pro
vincial law. There may well be some dislocation of
parole, if provincial imprisonment awaits an
inmate doing "federal time" upon his being let out,
but it is not our function to legislate. Those who do
make the law and their advisers meet annually if
not more often, in national and regional confer
ences of attorneys-general and deputy ministers. I
am sure they are aware of the problem.
Where do the provincial warrants of committal
direct the imprisonment to be served? Not in a
federal penitentiary. A declaratory judgment
declares the law in accordance with the Constitu
tion. What legal obligation rests on the Commis
sioner of Corrections to do anything about the
provincial warrants? Indeed, more to the point,
what obligation or right has he to interfere with a
purely provincial matter? Even if the Court orders
him to receive the warrants and count the "provin-
cial time", one cannot order the provincial authori
ties to accept it.
In the result the declaration is denied and the
action fails. Each party will bear his own costs. In
view of the importance and difficulty of the issues
raised, I do not think this is an appropriate case
for an award of costs against the unsuccessful
plaintiff.
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.