T-1477-75
Claude Godon (Petitioner)
v.
Canadian Penitentiary Service and the Queen
(Respondents)
Trial Division, Walsh J.—Montreal, May 12 and
30, 1975.
Prisoner escaping—Whether sentence for escape served con
currently with existing sentences—Criminal Code, S.C. 1953-
54, c. 51, ss. 129(1), 621(4); R.S.C. 1970 c. C-34, ss. 137(1),
645(4) as am.—Federal Court Rule 603.
When a prisoner is sentenced for escape, the penalty for the
escape is served first: the unserved portion of the sentence must
then be served. The sentences are, therefore, consecutive.
PETITION.
COUNSEL:
A. Denis for petitioner.
J. B. Belhumeur for respondents.
SOLICITORS:
Vian, Bélanger, Hébert, Mailloux, Beaure-
gard, Paquet and Pinard, Montreal, for
petitioner.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is a petition for a declaratory
judgment whereby petitioner seeks a declaration
that the sentence pronounced by the Honourable
Judge A. Cloutier the 1st of March 1966 against
petitioner was concurrent with the penalty already
served by him. The petition was supported by an
affidavit by petitioner's attorney with a copy of an
extract of the proceedings in the Court of Sessions
in Montreal, in which the sentence pronounced
reads:
[TRANSLATION] Two years in the penitentiary dating from this
date.
The charge to which petitioner pleaded guilty was
that:
[TRANSLATION] On or about the 26th day of January 1966
Claude Godon did illegally escape from a legal guardian of the
Leclerc Institute, thereby committing a criminal act contrary to
section 125w of the Criminal Code.
This section of the Code in effect at that time dealt
with escapes.
While counsel for respondents queried the
procedure of seeking declaratory relief by a peti
tion rather than an action, in view of the provisions
of Rule 603, especially since the Queen is repre
sented by the Attorney General of Canada, he
stated that he did not insist on this and was
satisfied that the Court should deal with the merits
of the petition, and I am of the view that, since
petitioner would allegedly already be eligible for
release on parole, according to his attorney, with
respect to his original sentence had the sentence
rendered by the late Judge Cloutier not been
interpreted as having the effect of a consecutive
rather than a concurrent sentence, the matter is
urgent and should be dealt with promptly without
further delays which would be the result of proce
dural objections to the form of the proceedings.
The affidavit submitted states that the late
Judge Cloutier clearly indicated after representa
tions made to him that the sentence should be
served concurrently with the other sentences he
was serving at the time as he wished to show
clemency to him. I am of the view that such
hearsay evidence attributing certain statements to
the late Judge Cloutier at the time he rendered
sentence are not admissible and that the written
sentence speaks for itself and must be interpreted.
It may well be that it was his intention that the
sentence should run concurrently when he stated
that it was to take effect "... dating from this
date" since petitioner had, according to his coun
sel, a much longer period than 2 years remaining
to serve of his original sentence.
The real question is whether the sentence ren
dered by the late Judge Cloutier had this effect, or
even if it was possible for him to render a sentence
on a charge of escape which could run concurrent
ly with the previous sentence. Section 645(4) of
the Criminal Code (section 621(4) of the Criminal
Code in effect at the time,-2-3 Elizabeth II c. 51)
sets forth the general rule that the court in impos
ing a second sentence
... may direct that the terms of imprisonment shall be served
one after the other.
In other words unless the court so provides, the
sentences shall be concurrent. Section 137(1) (sec-
tion 129(1) of the Code in effect at the time, and
worded differently, which differences however do
not affect the present issue) provides that
137. (1) Except when 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.
It appears to me that the words "after undergo
ing any punishment to which he is sentenced for
that escape" indicate clearly that after he is
returned to the penitentiary he must then serve his
sentence for his escape, following which the
remainder of the original sentence is then served.
In other words, the sentence for escape is not
served consecutively to the original sentence, but
the converse is true. The result of course is the
same, but I cannot find that a court, even if it
intended to make the sentence for escape run
concurrently with the original sentence can do so
in view of the express wording of section 137(1)
(or section 129(1) in effect in 1966) which simply
read:
129. (1) A person who escapes while undergoing imprison
ment is, after undergoing any punishment to which he is
sentenced for that escape, required to serve the portion of his
term that he had not served at the time of his escape.
Petitioner's counsel contends that if the late
Judge Cloutier, by intending to impose a concur
rent sentence, was not following the law, the
Crown should have appealed at that time, and that
another court cannot now find that his sentence
was erroneous. I think this argument misses the
point. The sentence as it reads is not erroneous or
contrary to the law. It merely imposed a 2 year
sentence from the date of its imposition. The
consequences of this were that by virtue of section
129(1) it immediately began to be served, and
when it expired, the remainder of petitioner's
original sentence then took effect. There was no
error in the sentence and nothing for the Crown to
appeal. The issue is not whether petitioner, his
attorney and even perhaps the late Judge Cloutier
thought the sentence would be concurrent
(although there is nothing in any event to indicate
that the late Judge Cloutier so intended save for
the inadmissible evidence already referred to), but
what are the actual legal consequences of the
sentence he did render.
I am reinforced in my conclusion by the com
mentary of Judge Irénée Lagarde in his Droit
Pénal Canadien 2nd ed. Vol. I commenting on s.
137 he states [at page 273]:
[TRANSLATION] When the fugitive is condemned to a penalty
for his escape, this penalty is first served, then he must—
afterwards—serve the unserved portion of his sentence. These
are therefore consecutive sentences [645(4)].
I have no choice therefore but to - dismiss peti
tioner's petition with costs, if respondents insist on
same.
ORDER
Petition dismissed with costs if respondents
insist on same.
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.