Dempsey v. Canada
(Attorney General)

(1986), 25 C.C.C. (3d) 193, 51 C.R. (3d) 248, [1986] 3 F.C. 129 (F.C.A.)

    D was serving a prison term in a federal institution totaling 12 years pursuant to convictions under the Criminal Code. At various times shortly before and shortly after his incarceration, he was sentenced to a total of 85 days of imprisonment under provincial legislation. Believing that he was entitled to serve those latter sentences in the penitentiary at the same time as his Criminal Code sentences, D arranged to have the warrants of committal that had been issued in respect of the provincial infractions served on the CSC officials at the institution where he resided. Those officials refused to accept them. D brought an action to the Trial Division seeking a declaration that he was entitled to serve those sentences in the penitentiary together with the sentences pronounced against him under the Code. That action was dismissed, and D appealed to the Federal Court of Appeal.
    The Federal Court of Appeal, in a two to one decision, allowed the appeal. Hugessen J. held that by virtue of s659(2) of the Criminal Code which provided that "where a person who is sentenced to imprisonment in a penitentiary is, before the expiration of that sentence, sentenced to imprisonment for a term than two years, he shall be sentenced to and shall serve that term in a penitentiary..", the penitentiary authorities were required to accept the warrants of committal for provincial offences. By its terms, s659(2) clearly applied to D's case, and there was no basis for limiting its application to sentences imposed for breach of federal statutes. However, the sentence for the provincial offences must be served in accordance with provincial law and by virtue of the Provincial Offences Act, the sentences imposed for provincial offences are to be consecutive unless otherwise ordered. The appeal was allowed and a declaration made that D was entitled to have unexecuted warrants of committal issued under provincial law received by the CSC and duly executed and to serve all sentences therefore consecutively to the sentence he was serving under the Criminal Code.
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