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.
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.