Supreme Court of Canada
Olson v. The Queen, [1980] 1 S.C.R. 808
Date: 1979-12-21
Clifford Robert Olson Appellant;
and
Her Majesty The Queen Respondent.
1979: December 18; 1979: December 21.
Present: Martland, Pigeon, Dickson, Estey and Chouinard JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Criminal law—Application for writ of habeas corpus ad subjiciendum—Court of Appeal reducing sentences of imprisonment to terms of less than two years—Sentences imposed on appellant made before expiration of sentence of imprisonment in a penitentiary—Warrants of committal directing imprisonment in a correctional institution result of administrative error—Appellant properly convicted and sentenced, and required to serve his sentences in a penitentiary—Criminal Code, s. 659(2).
APPEAL pursuant to s. 719(3) of the Criminal Code from a judgment of the Court of Appeal for Saskatchewan which dismissed the appellant’s appeal from the judgment of Sirois J. who refused the appellant’s application for a writ of habeas corpus ad subjiciendum. Appeal dismissed.
No one appearing for the appellant.
Eric A. Bowie, for the respondent.
THE COURT—This is an appeal pursuant to subs. 719(3) of the Criminal Code of Canada from the judgment of the Court of Appeal for Saskatchewan which dismissed the appellant’s appeal from the judgment of Sirois J. who refused the appellant’s application for a writ of habeas corpus ad subjiciendum.
As the result of a number of sentences and releases commencing in January 1974, the appellant was released from the Penitentiary on June 14, 1978, on mandatory supervision. That mandatory supervision was to end on September 21, 1978. Instead, it was suspended on September l, 1978, and he was retaken into custody on September 6, 1978. His mandatory supervision was revoked on September 8, 1978.
[Page 809]
On September 6, 1978, at Camrose, Alberta, the appellant pleaded guilty and was convicted of two offences under the Criminal Code, for each of which he was sentenced to a term of imprisonment of two years, the two to be served concurrently. The two warrants of committal order that the accused be imprisoned in a penitentiary. On September 27, 1978, he was again convicted in Alberta of an offence under the Criminal Code. He was then sentenced to serve nine months consecutive to the two sentences above-mentioned, but the warrant of committal mentioned imprisonment in a provincial correctional institution.
In the result the appellant was committed to the Saskatchewan Penitentiary.
These three sentences were all appealed by the appellant to the Appellate Division of the Supreme Court of Alberta. On January 17, 1979, that Court set aside all three sentences and substituted in their place the following three sentences:
(a) two years less one day;
(b) two years less one day concurrent;
(c) nine months concurrent with the other sentences.
To allow him to appear in person before the Alberta Court of Appeal the appellant was on January 5, 1979, taken to the Fort Saskatchewan Correctional Institution.
Following the decision of the Appellate Division made January 17, 1979, the appellant was returned to the Saskatchewan Penitentiary where he has since remained.
However, the three warrants of committal of the Appellate Division stated on their face that:
…on the 17th day of January, A.D. 1979, it was adjudged that the Appellant for his offence be imprisoned in any Correctional Institution in the said Province.
The appellant submits that he is improperly detained in the Saskatchewan Penitentiary because these warrants of committal, issued after the judgment of the Appellate Division by the
[Page 810]
Deputy Registrar, stated that “it was adjudged that the appellant for his offence be imprisoned in any Correctional Institution in the said Province”, i.e. Alberta, and directed the keeper of such Institution to imprison him there. His contention is that in view of these warrants his detention in the Saskatchewan Penitentiary is not lawful.
The Crown relies on the provisions of subs. 659(2). The sentences imposed on the appellant in Alberta were made before the expiration of his sentence of imprisonment in the penitentiary.
Subsections (1) and (2) of s. 659 of the Criminal Code provide as follows:
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).
The Court was concerned as to whether the judgments of the Appellate Division had, in the words of the warrants, adjudged that the appellant be imprisoned in a Correctional Institution in Alberta. At the request of the Court, counsel for the Crown obtained and provided copies of the Court’s judgments. There is no such direction. The judgments allow the appeals against sentence and substitute new sentences for those imposed at trial, as previously described.
In view of these circumstances, it appears that the form of the warrants of committal directing imprisonment in a Correctional Institute in Alberta were the result of an administrative error and are defective in that respect.
[Page 811]
In the result, the appellant was properly convicted and sentenced and, in the light of subs. 659(2), is required to serve his sentences in a penitentiary. He is not unlawfully detained in the Saskatchewan Penitentiary.
The appeal is therefore dismissed.
Appeal dismissed.
Clifford Robert Olson, appellant: P.O. Box 160, Prince Albert.
Solicitor for the respondent: Roger Tassé, Ottawa.