16. (1) Agreements with provinces - The Minister may, with the approval of the Governor in Council, enter into an agreement with the government of a province for

the confinement in provincial correctional facilities or hospitals in that province of persons sentenced, committed or transferred to penitentiary; and

the confinement in penitentiary of persons sentenced or committed to imprisonment for less than two years for offences under any Act of Parliament or any regulations made thereunder.

      (2) Effect of confinement - Subject to subsection (3), a person who, pursuant to an agreement entered into under paragraph (1)(b), is confined in a penitentiary is, notwithstanding subsection 743.3(1) of the Criminal Code, subject to all the statutes, regulations and rules applicable in the penitentiary in which the person is confined.

      (3) Release date - The release date of an offender who is transferred to penitentiary pursuant to an agreement entered into under paragraph (1)(b) shall be determined by crediting against the sentence

any remission, statutory or earned, standing to the offender's credit on the day of the transfer; and

the maximum remission that could have been earned on the balance of the sentence pursuant to the Prisons and Reformatories Act.

[1992, c. 20, s. 16; 1995, c. 22, s. 13, c. 42, s. 6.]

R v. Anaskan - (1977), 34 C.C.C. (2d) 361, 76 D.L.R. (3d) 351, 15 O.R. (2d) 515 (Ont.C.A.)

- Pursuant to an Order in Council made under s15 of the Penitentiary Act, the Solicitor-General was authorized to enter into "an agreement with the government of any province for the confinement in penitentiaries" of prisoners serving terms of less than two years in provincial institutions "in any instance when it appears to the Solicitor- General that such confinement in a penitentiary or other institution is desirable". The accused, sentenced to a term of less than two years in Saskatchewan, was transferred from the provincial institution to the federal Penitentiary for Women in Ontario pursuant to an agreement entered into by Saskatchewan and the federal Government. A habeas corpus application was filed where the inmate argued that the Solicitor-General or his Deputy must personally consider each transfer, which was not done in this case, and that s15(1) of the Penitentiary Act authorizing such transfer agreements could not qualify the direction in that s659(3) of the Criminal Code provided that a person not serving a sentence of two years or more shall be sentenced to imprisonment in a place of confinement within the Province other than a penitentiary. Neither s15(1) of the Penitentiary Act nor the Order in Council required that the Solicitor-General or the Deputy Solicitor-General personally consider each individual transfer to a federal institution. The use of the words "an agreement... for the confinement of persons" clearly contemplates a general agreement concerning all such transfers, and by necessary implication allows for the determination and administration of the transfers being carried out by proper departmental officers. With respect to s659(3) of the Criminal Code, it would appear that s15 of the Penitentiary Act was enacted in the light of s659(3) and covered a specific exception to the general words of that section. Accordingly, the accused could be validly transferred pursuant to an agreement under s15 despite s659(3). In this case, the inmate was placed in a penitentiary pursuant to a transfer initiated by provincial civil servants in Saskatchewan. As a result, it was held that an Ontario Court has no jurisdiction to quash order or determination of a Saskatchewan civil servant made by virtue of his office established by a Saskatchewan statute.

Morin v. Director of Corrections for Saskatchewan - (1982), 70 C.C.C. (2d) 230, 17 Sask.R. 333 (Sask.C.A.)

- The transfer of an inmate from a provincial reformatory to a federal penitentiary is sufficiently akin to disciplinary proceedings to require fairness on the part of the authorities. In the Province of Saskatchewan guidelines had been established for the transfer of inmates between the provincial facility and federal penitentiary that included a procedure for an appeal to the Director of Correctional Centres prior to an involuntary transfer. Thus, failure on the part of the custodial authorities to notify an inmate of the intended transfer had the effect of depriving him of a right of appeal and to present his grounds of appeal, and amounted to unfairness. Habeas corpus with certiorari in aid is available to challenge a decision transferring an inmate from a provincial reformatory to a penitentiary.

Durack v. Saskatchewan Penitentiary - (1990), 9 W.C.B. (2d) 334 (Sask.Q.B.)

- An inmate sought to quash the decision of a provincial correctional centre revoking an agreement between the federal and provincial government to hold him in the provincial institution, despite the fact that he would otherwise be subject to a sentence in a penitentiary. Moving the inmate from the general population of the provincial institution to the general population of the penitentiary did not amount to a deprivation of his "liberty" within the meaning of s7 of the Charter of Rights.