T-4879-79
Valentine Nicholas Leschenko (Plaintiff)
v.
Attorney General of Canada, Solicitor General of
Canada, and Commissioner of Corrections
(Defendants)
Trial Division, Jerome A.C.J.—Ottawa, February
15 and April 23, 1981.
Prerogative writs — Plaintiff seeks a declaration that he is
entitled to credit against the time to be served under sentence
in Canada for the time spent in custody in the United States
Plaintiff also seeks a declaration that s. 137(1) of the Criminal
Code is applicable to the sentence of attempted escape imposed
on him — Officials of the Canadian Penitentiary Service had
applied s. 22(4) of the Penitentiary Act in computing the
period of imprisonment after the sentence for attempted escape
— Whether the sentence plaintiff is serving should be recom-
puted to credit against the period he is to serve for the time
spent in custody in the United States — Whether s. 137(1) of
the Code is applicable in law to the sentence of attempted
escape — Criminal Code, R.S.C. 1970, c. C-34, as amended,
ss. 137(1),(2),(3),(4), 421(6) — Transfer of Offenders Act, S.C.
1977-78, c. 9, ss. 4, 11(1),(2) — Penitentiary Act, R.S.C. 1970,
c. P-6, as amended, s. 22(4).
The plaintiff seeks a declaration that he is entitled to credit
against the time to be served under sentence in Canada for the
time spent in custody in the United States. He further seeks a
declaration that section 137(1) of the Criminal Code is appli
cable to the sentence of attempted escape. The plaintiff, while
serving a term of imprisonment in a Canadian penitentiary was
sentenced to six months for attempted escape. In 1975, the
plaintiff escaped, but was arrested, taken into custody and
sentenced to imprisonment in the United States for an offence
he committed there. In 1978, pursuant to the provisions of the
Transfer of Offenders Act he was transferred to Canada.
Officials of the Canadian Penitentiary Service recomputed his
period of imprisonment pursuant to section 22(4) of the Peni
tentiary Act. The Judge, imposing sentence for attempted
escape, directed that the plaintiff be imprisoned for six months
pursuant to section 137 of the Criminal Code. The defendants
submitted that since section 137 of the Code neither creates an
offence nor imposes any period of imprisonment, the endorse
ment must be treated as a clerical error. The first question is
whether the plaintiff is entitled to a declaration for credit
against the time to be served under sentence in Canada for the
time spent in custody in the United States. The second question
is whether section 137 of the Code is applicable to the sentence
of attempted escape.
Held, the plaintiff is entitled to a declaration that section
137(1) of the Criminal Code is applicable to the sentence of
attempted escape, but he is not entitled to a declaration for
credit against the time to be served under sentence in Canada
for the time spent in custody in the United States. The submis
sion of the defendants is rejected. While it is true that the
information charged an offence contrary to section 421(b) of
the Criminal Code and that the endorsement of the conviction
probably should have made reference to that section, neverthe
less section 137 had a direct relationship to the calculation of
any sentence imposed and so long as there is some application
of this section of the Criminal Code to which the convicting
Judge may have addressed himself at the time, the endorsement
cannot be classified as a clerical error. The plaintiff is entitled
to the benefit of whatever application may be made of section
137 to his punishment and to the calculation of the time to be
served thereunder. The words "in custody" in section 137 mean
in custody in a Canadian penitentiary which may include
several forms of detention but always within Canada. The
Transfer of Offenders Act expresses only the intention required
to give effect to the obvious purposes of the Act and does not
indicate any intention to extend credit for time served in an
American penitentiary under sentence from an American court,
for an offence committed in the United States, against a former
Canadian sentence, as though all of these events took place,
including time in custody, in Canada.
Re McCaud (1977) 16 N.R. 14, confirmed by the Ontario
Court of Appeal, applied. Re Hass and The Queen (1978)
40 C.C.C. (2d) 202, referred to. Marcotte v. The Deputy
Attorney General for Canada [1976] 1 S.C.R. 108,
referred to. Re Kissick (No. 4) (1952) 103 C.C.C. 161,
referred to. Foster v. The Queen (1976) 34 C.R.N.S. 293,
referred to. R. v. Robinson ( 1907) 14 O.L.R. 519, referred
to. Re Stanton and The Queen (1980) 49 C.C.C. (2d) 177,
referred to. R. v. Pasek [1974] 3 W.W.R. 759, referred to.
APPLICATION.
COUNSEL:
Ronald R. Price, Q.C. for plaintiff.
Arnold S. Fradkin for defendants.
SOLICITORS:
Ronald R. Price, Q. C., Kingston, for plaintiff.
Deputy Attorney General of Canada for
defendants.
The following are the reasons for judgment
rendered in English by
JEROME A.C.J.: In this action, the plaintiff
seeks a declaration in two parts which have a
bearing on the calculation of the sentence he is
now serving in a Canadian penitentiary. The facts
are somewhat complicated but were reduced to an
agreed statement by counsel, which can be sum
marized as follows:
(a) As' of December 3, 1973, the plaintiff was
serving a term of imprisonment in a Canadian
penitentiary of approximately 21 years for
crimes committed in Canada.
(b) On August 29, 1974, the plaintiff was sen
tenced to six months for the offence of attempt
ed escape.
(c) On December 20, 1975, the plaintiff escaped
from the penitentiary. At this time he had an
unserved balance of imprisonment of approxi
mately 20 years.
(d) On February 18, 1976, he was arrested in
the United States and taken into custody.
(e) On June 11, 1976, he was sentenced in the
United States to 15 years imprisonment (two
terms concurrent) for crimes committed therein.
(f) After the Transfer of Offenders Act, S.C.
1977-78, c. 9, which implemented the treaty
relating thereto between Canada and the United
States was proclaimed on July 17, 1978, and
pursuant to the provisions thereof, the plaintiff
was transferred to Canada.
(g) At the time of the said transfer, he was
credited pursuant to the said Act, particularly
section 11 thereof, with two years, seven
months, 25 days for time spent in custody in the
United States.
(h) After the plaintiff was transferred to
Canada, officials of the Canadian Penitentiary
Service discovered that they had applied the
former section 137 of the Criminal Code,
R.S.C. 1970, c. C-34, instead of the former
section 22(4) of the Penitentiary Act, R.S.C.
1970, c. P-6, when computing the period of
imprisonment after the sentence for attempted
escape on August 29, 1974. Consequently, they
recomputed this period of imprisonment pursu
ant to section 22(4) of the said Act.
(i) The former section 137 of the Criminal Code
became effective on July 15, 1972, and was
replaced by the present section 137 on October
15, 1977.
(j) Section 22(4) of the Penitentiary Act was
effective from 1961 and was repealed on July 1,
1978.
(k) The plaintiff has never been convicted nor
sentenced for his escape on December 20, 1975.
The plaintiff seeks:
(a) A declaration of this Honourable Court that
the plaintiff is entitled to credit against the time
to be served under sentence in Canada for the
time spent in custody in the United States, and
to have the sentence that he is serving recomput-
ed accordingly, and
(b) A declaration of this Honourable Court that
section 137(1) of the Criminal Code', as it then
provided, is applicable in law to the sentence of
attempted escape imposed on the plaintiff on the
29th day of August, 1974, and that the plaintiff
is entitled to have the sentence that he is serving
recomputed accordingly.
The latter issue is easier to resolve and I will
deal with it first. Upon examination of the warrant
of committal upon conviction, it is clear that the
Provincial Court Judge imposing sentence for the
offence of attempted escape, directed that the
plaintiff "be imprisoned in the Saskatchewan Peni
tentiary for a term of six months pursuant to
section 137 of the Criminal Code". Section 137 of
the Criminal Code was then in the form enacted
by Parliament in 1972.
137. (I) Except where 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.
(2) For the purpose of subsection (1), section 14 of the
Parole Act applies in determining the term of imprisonment
that a person who escapes while undergoing imprisonment was
serving at the time of his escape.
(3) A person who escapes while undergoing imprisonment
shall serve the term, if any, to which he is sentenced for the
escape and the additional term calculated in accordance with
subsection (1) in a penitentiary if the aggregate of such terms is
two years or more or, if the aggregate of such terms is less than
two years,
(a) in the prison from which the escape was made, or
(b) where the court, judge, justice or magistrate by whom he
is sentenced for the escape so orders, notwithstanding the
Parole Act, in a penitentiary,
and where a person is convicted for an escape, he shall,
notwithstanding section 659, be sentenced accordingly.
' R.S.C. 1970, c. C-34.
(4) For the purposes of this section, "escape" means breaking
prison, escaping from lawful custody or, without lawful excuse,
being at large within Canada before the expiration of a term of
imprisonment to which a person has been sentenced.
It is the defendants' submission that since section
137 neither creates an offence nor imposes any
period of imprisonment, the endorsement must be
treated as a clerical error. I reject this submission
for two reasons. First, while it is true that the
information charged an offence contrary to section
421(b) of the Criminal Code and that the endorse
ment of the conviction probably should have made
reference to that section, nevertheless section 137
had a direct relationship to the calculation of any
sentence imposed, and so long as there is some
possible application of this section of the Criminal
Code to which the convicting Judge may have
addressed himself at the time, I can scarcely clas
sify the endorsement as a clerical error. Secondly,
even if I were to determine that the endorsement
was an error, which I do not, such clerical errors
must be returned to the convicting Judge by way
of an application for correction. 2 This is obviously
not such an application, nor is it an appeal from
the sentence imposed and, in the circumstances, I
must conclude that the plaintiff is entitled to the
benefit of whatever application may be made of
section 137 to his punishment and to the calcula
tion of the time to be served thereunder. I invited
counsel to collaborate on such a calculation, and
they agreed upon the following, which I find to be
correct:
Original term from December 3, 1973 7660 days
Less days served to August 28, 1974 — 269
7391
Less earned remission — 24
7367
Plus six months if section 137 applied 183
New term to serve from August 29, 1974 7550
Less statutory remission —1888
5662
Served from August 29, 1974 to December 19,
1975 — 478
5184
Less earned remission — 42
5142 days
2 See Re Hass and The Queen (1978) 40 C.C.C. (2d) 202.
This then, was the situation on December 20,
1975, when the plaintiff escaped custody and in
due course was convicted and sentenced in the
United States, which gives rise to the other aspect
of the declaration sought by the plaintiff, that time
spent in custody in the United States is credited,
not just against the United States sentence pursu
ant to the Transfer of Offenders Act 3 , but also
against the earlier Canadian sentences as though it
had been spent in custody following recapture in
Canada.
Counsel for the plaintiff delivered a very persua
sive argument concerning the situation at common
law and there is ample authority to conclude that,
in the absence of statutory provisions to the con
trary, the common law would have put this
accused in a situation where no act on his part,
even escape, could alter the termination date of his
sentences. It is not necessary to elaborate on the
rationale behind the common law approach except
to say that society appeared to expect that the
obvious injustice of allowing the sentence of an
escaped prisoner to continue to run down even
during the period of his escape, would have to be
corrected by punishment for the escape itself. In
any event, I cannot conclude that the common law
situation has any application to this matter
because in 1972, Parliament passed the version of
section 137 of the Criminal Code which I have
quoted earlier. Whatever other difficulties of inter
pretation may follow, that section was unquestion
ably in force at the time of the plaintiffs escape in
1974 and it constituted a statutory change in the
common law position. There is a fascinating argu
ment caused by the enactment in 1977 of the
present section 137, as follows:
137. (1) A person convicted for an escape committed while
undergoing imprisonment shall be sentenced to serve the term
of imprisonment to which he is sentenced for the escape either
concurrently with the portion of the term of imprisonment that
he was serving at the time of his escape that he had not served
or if the court, judge, justice or magistrate by whom he is
sentenced for the escape so orders, consecutively and such
imprisonment shall be served
(a) in a penitentiary if the time to be served is two years or
more; or
(b) if the time to be served is less than two years,
(i) in a prison, or
3 S.C. 1977-78, c. 9.
(ii) notwithstanding the Parole Act and section 659, in a
penitentiary if the court, judge, justice or magistrate by
whom he is sentenced for the escape so orders.
(2) For the purpose of subsection (1), section 14 of the
Parole Act applies in determining the term of imprisonment
that a person who escapes while undergoing imprisonment was
serving at the time of his escape.
(3) For the purposes of subsection (1), "escape" means
breaking prison, escaping from lawful custody or, without
lawful excuse, being at large before the expiration of a term of
imprisonment to which a person has been sentenced.
This present section 137 was brought into force by
the Criminal Law Amendment Act, 1977 4 , so that
section 137, as it was in force at the time of the
escape, is no longer the law. Since the present
section 137 can only influence the calculation of
this plaintiff's punishment following conviction, it
can have no application because there has never
been any prosecution for this escape. Are we then
left with no applicable statutory alteration to the
common law? I think not, and in this respect, I
accept the submissions outlined in paragraphs 8
through 13 of the plaintiff's memorandum of argu
ment. Paraphrasing section 137 only slightly, it
created, in my opinion, an obligation upon a
person who escapes ... to serve the portion of the
term of imprisonment that he was serving ... that
he had not then served. As such, it altered the
common law position and, in my opinion, it
addressed itself to the act of escape at the time of
the escape. It was in force in December 1974 when
this plaintiff escaped custody and it therefore
imposed upon this plaintiff the obligation to serve
the then unexpired portion of his term of imprison
ment "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 [the] escape", which leads us to the
plaintiff's final submission. I accept the plaintiff's
submission that there is clear authority for credit
ing, for the purposes of section 137, time in cus
tody, notwithstanding that the time was under
sentence for another and later offences and also
accept the submission that, for the purposes of
section 137, custody has been taken to include
almost every form of detention of a re-arrested
4 S.C. 1976-77, c. 53.
5 Regina v. Pasek [1974] 3 W.W.R. 759.
person in transit, in hospital, pending trial, etc. I
am not, however, able to find any authority for the
extension of either interpretation to custody out
side Canada. On this question, we must now turn
to the decision in Re McCaud 6 which is sufficient
ly brief to be repeated in its entirety:
VAN CAMP, J.: This was a motion for habeas corpus which,
by agreement of counsel, was argued as a motion for discharge.
The question is the method of computation of the days of
imprisonment the applicant has served. On February 3rd, 1971,
the applicant was convicted and sentenced to serve a term of 3
years imprisonment in a Canadian penitentiary. He was given a
temporary leave of absence from December 22nd, 1971, at 4
p.m. to December 28th, 1971, at 4 p.m., inclusive, to spend
Christmas with his family. He failed to return until he was
delivered into custody to the Ontario Provincial Police at Fort
Erie on January the 15th, 1975. He was acquitted in April,
1975, of a charge that on or about the 28th day of December,
1971, in the Province of Ontario, he was unlawfully at large
before the expiration of his term of imprisonment without
lawful excuse and did thereby commit an offence contrary to s.
133(b) of the Criminal Code of Canada. The new release date
from custody calculated without credit for the number of days
he was not in Canadian custody is submitted by counsel for the
Attorney General to be March 14, 1976.
Counsel for the applicant submits that a term of imprison
ment may be interrupted only by bail, parole or escape. Section
137(4) defines escape and s. 137 sets out the method of
computation when there has been an escape. The applicant has
not been granted bail or parole and has been acquitted of
escape. Counsel for the Attorney General submits that under
the provisions of s. 659 and 660 of the Criminal Code the
sentence was to be served in a penitentiary in accordance with
the enactments and rules governing such. The Penitentiary Act,
R.S.C. 1970, c. P-6, in various sections, states when a person
shall be deemed to be in lawful custody although not in a
penitentiary; for example, s. 13(7), where he is in transit while
in the custody of authorized persons; section 19(4), while
confined in a provincial hospital; sections 22 and 24 provide for
credits for statutory and earned remission. Section 25 sets out
the computation of term while an inmate is at large under
authority of the Parole Act, R.S.C. 1970, c. P-2. Section 26
provides for authorized temporary absence. There is no express
statutory provision for the computation of time while an inmate
is at large, within Canada, without authorization. I am asked to
look at s. 11 of the Interpretation Act, R.S.C. 1970, c. I-23,
whereby every enactment is to be given such a liberal construc
tion as will ensure that it attains its objects. I am also referred
to the rules stated in Re Kissick, 103 C.C.C. 161, that a person
should not be detained in custody unless there are unequivocal
words used by the legislation warranting imprisonment; that
any doubt re legality should be resolved in favour of the
prisoner. In the matter before me it is not necessary to seek to
widen the construction of the statute nor do I find that it is
equivocal. The sentence was to be served in a penitentiary. The
applicant was not there during the period in question. Since
there is no evidence that the applicant was absent therefrom
under any authorization or that he is deemed by any statute to
6 (1977) 16 N.R. 14.
have been in lawful custody it cannot be held that he was
serving a sentence while he was absent from December 28th,
1971 to January 15th, 1975.
The application is dismissed.
It has been suggested that an appeal against this
decision was dismissed by the Ontario Court of
Appeal without reasons. In fact, the then Chief
Justice Gale had the following to say, which in my
opinion, constitutes a very clear endorsement, not
only of the judgment, but of the reasoning of Van
Camp J.:
This is an appeal from the judgment of Madam Justice Van
Camp dismissing a motion brought by Mr. MacCaud [sic] for
habeas corpus. The reasons for judgment of Madam Justice
Van Camp neatly and accurately set out the issues. We have
considered the matter with some care and are of the opinion
that the appeal must be dismissed.
The appellant was sentenced to a term of imprisonment in a
Canadian penitentiary. He has not served that term and he
does not bring himself within any of the exceptions which
would give him credit for time served outside a Canadian
penitentiary. His argument before us is ingenious and persua
sive, but not sufficiently persuasive to convince us that we
should interfere with the judgment of Madam Justice Van
Camp. As I have already stated, the appeal will be dismissed.
Furthermore, an appeal from the latter decision
was taken to the Supreme Court of Canada and
dismissed without reasons. It seems to me that
even the most restrictive interpretation of that
judgment establishes that the words "in custody"
mean in custody in a Canadian penitentiary, which
may include several forms of detention, but always
within Canada, and unless the plaintiff is in a
position to point to some language in the Transfer
of Offenders Act which establishes a contrary
intention of Parliament, the plaintiff must fail.
I need not add for emphasis, of course, that
taking the wider approach to the interpretation of
the McCaud decision, the matter is resolved in the
simplest fashion by beginning from the premise
that this plaintiff's sentence of some twenty-one
years that he was serving at the time of his escape
in 1975, was a sentence which, pursuant to sec
tions 659 and 660 of the Criminal Code was to be
served in a Canadian penitentiary and that no
statutory authority exists for calculating as a
credit against that sentence, time in which this
plaintiff was not in a Canadian penitentiary, unless
it was under authority, which obviously was not
the case.
The plaintiff refers to sections 4 and 11 of the
Transfer of Offenders Act and formulates an
ingenious submission that since the foreign convic
tion and sentence are deemed to be Canadian, and
since time spent in custody under the foreign
sentence must be credited in calculating the sen
tence to be served in Canada, then that time spent
in foreign custody equally must be deemed to be
Canadian, not just for the purposes of the Transfer
of Offenders Act, but for all purposes.
4. Where a Canadian offender is transferred to Canada, his
finding of guilt and sentence, if any, by a court of the foreign
state from which he is transferred is deemed to be a finding of
guilt and a sentence imposed by a court of competent jurisdic
tion in Canada for a criminal offence.
11. (1) A Canadian offender transferred to Canada
(a) shall be credited with any time toward completion of his
sentence that was credited to him at the date of his transfer
by the foreign state in which he was convicted and sentenced;
and
(b) is eligible to earn remission as if he had been committed
to custody on the date of his transfer pursuant to a sentence
imposed by a court in Canada.
(2) Any time referred to in paragraph (1)(a) except time
actually spent in confinement pursuant to the sentence imposed
by the foreign court is subject to forfeiture for a disciplinary
offence as if it were remission credited under the Penitentiary
Act or the Prisons and Reformatories Act.
Obviously, without such enactment, no authority
exists to detain the transferred offender in a
Canadian penitentiary, and no basis exists for
calculation of sentence, remission and parole, but
there is not a single word to indicate Parliament's
intention that the foreign sentence be deemed to be
a Canadian sentence for any other purpose. Simi
larly, with the equally obvious provision that in
calculating the time to be served after the transfer,
credit must be given for time already served on the
foreign sentence, there is no indication of Parlia
ment's intention to extend that credit for any other
purpose. I have in mind the established principle of
interpretation that if real ambiguities are found or
doubts of substance arise in the construction and
application of a statute affecting the liberty of the
subject, then that statute should be applied in such
a manner as to favour the person against whom it
is sought to be enforced.' I am far from certain
that the transfer of offenders programme, which,
after all, is a voluntary arrangement for the benefit
of the prisoner, falls within the classification of
truly penal statutes, but in any event, there is
neither ambiguity nor doubt. The statute expresses
only the intention required to give effect to the
obvious purposes of the programme and does not
indicate, in my opinion, any intention whatever to
extend credit for time served, in this case, in an
American penitentiary, under sentence from an
American court, for an offence committed in the
United States, against a former Canadian sen
tence, as though all of these events took place,
including time in custody, in Canada, and in this
respect, the plaintiff's submission must fail. I
should also add that any such intention by Parlia
ment would have to be even more explicit if it were
to bring about a retroactive credit. This plaintiff's
sentence was imposed on June 11, 1976, so that
more than two years of the time which he now
seeks to credit against the balance of his former
Canadian sentence was served in the United States
prior to the proclamation of the Transfer of
Offenders Act on July 17, 1978.
The plaintiff is therefore not entitled to a decla
ration for credit against the time to be served
under sentence in Canada for the time spent in
custody in the United States, and to have the
sentence that he is serving recomputed according
ly.
Returning then to the earlier calculations, the
plaintiff was required, at the time of his escape in
December, 1975, and equally upon his return to
custody in October of 1978, to serve 5,142 days.
On July 1, 1978, however, section 22(4) of the
Penitentiary Acts was repealed and counsel there
' See: Marcotte v. The Deputy Attorney General for Canada
[1976] 1 S.C.R. 108; Re Kissick (No. 4), (1952) 103 C.C.C.
161; Foster v. The Queen (1976) 34 C.R.N.S. 293; Rex v.
Robinson (1907) 14 O.L.R. 519; Re Stanton and The Queen
(1980) 49 C.C.C. (2d) 177.
8 R.S.C. 1970, c. P-6, as amended by the Criminal Law
Amendment Act, 1977, S.C. 1976-77, c. 53, sections 40 and 41.
fore collaborated on the application of the new
provisions to the plaintiff's term of imprisonment,
as follows:
Conversion to new remission section 24.2
(a) New earned remission eligibility:
7550 x 1 / 3 : 2517
(b) Less statutory remission credited: —1888
(c) Less earned remission credited: — 42
587 days
From October 13, 1978
Days
Served Remission Balance
5142
To December 31, 1978 80 39 5023
To December 31, 1982 1461 548 3014
To December 31, 1990 2922 — 92
To April 2, 1991 92
so that the plaintiff's mandatory supervision date
is April 2, 1991 and his warrant expiry date is
February 21, 1998.
The plaintiff's success on the one aspect of the
matter entitles him to costs.
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.