11. General - A person who is sentenced, committed or transferred to penitentiary may be received into any penitentiary, and any designation of a particular penitentiary in the warrant of committal is of no force or effect.

11.1 Recommitment to custody - Where a person who is sentenced, committed or transferred to penitentiary is at large without lawful authority before the expiration of the sentence according to law and where no alternative means of arrest are available, the institutional head may, by warrant, authorize the apprehension and recommitment of the person to custody in a penitentiary.

[1995, c. 42, s. 4.]

12. Fifteen day delay - In order to better enable a person who has been sentenced to penitentiary or who is required by law to be transferred to penitentiary to file an appeal or attend to personal affairs, such a person shall not be received in penitentiary until the expiration of fifteen days after the day on which the person was sentenced, unless the person agrees to be transferred to a penitentiary before the expiration of those fifteen days.

13. Medical certificate - The institutional head may refuse to receive a person referred to in section 12 into the penitentiary if there is not a certificate signed by a registered health care professional setting out available health information and stating whether or not the person appears to be suffering from a dangerous, infectious or contagious disease.

14.(1) Confinement in provincial facility - A person who, by virtue of section 12 or 13, is not received into a penitentiary shall be confined in a provincial correctional facility.

      (2) Idem - The person in charge of the provincial correctional facility to whom a person referred to in subsection (1) is delivered shall, on being presented with

the warrant of committal to penitentiary, or

a copy of the warrant of committal certified by any judge of a superior or provincial court, by any justice of the peace, or by the clerk of the court in which the person was convicted,

confine the person in the provincial correctional facility until the person is transferred to penitentiary or released from custody in accordance with law.

[1992, c. 20, s. 14; 1995, c. 42, s. 5.]

15.(1) Newfoundland - Notwithstanding any requirement in the Criminal Code or under the Youth Criminal Justice Act that a person be sentenced, committed or transferred to penitentiary, such a person in the Province of Newfoundland shall not be received in a penitentiary without the approval of an officer designated by the Lieutenant Governor of Newfoundland.

      (2) Idem - A person who, pursuant to subsection (1), is not received in a penitentiary shall be confined in the provincial correctional facility in Newfoundland known as Her Majesty's Penitentiary; and is subject to all the statutes, regulations and rules applicable in the facility.

      (3) Agreement re cost - The Minister may, with the approval of the Governor in Council, enter into an agreement with the Province of Newfoundland providing for the payment to the Province of the cost of maintaining persons who are confined pursuant to subsection (2).
[1992, c. 20, s. 15; 2002, c. 1, s. 172.]

Morley v. Director of Stony Mountain Institution - (1981), 61 C.C.C. (2d) 190, 22 C.R. (3d) 331, 13 Man.R. (2d) 391, [1981] M.J. No.34 (Man.C.A.)

- Where an accused escaped from a penitentiary and eventually was apprehended in the United States, he was not entitled to credit against his sentence for time spent in custody in United States while awaiting extradition.

R v. Dozois - (1981), 61 C.C.C. (2d) 171, 22 C.R. (3d) 213 (Ont.C.A.)

- The court agreed that the statutes dealing with the imprisonment of convicted offenders set out exhaustively all the instances in which an offender is deemed to be serving a sentence although he or she is not actually residing in the penitentiary. Thus, time spent by an accused in custody in a foreign jurisdiction by reason of offences committed by him in that jurisdiction while he was unlawfully at large from a Canadian penitentiary do not count against the unserved portion of the sentence in Canada notwithstanding the accused is later transferred to Canada to continue serving his sentence pursuant to the Transfer of Offenders Act. At common law, the time during which an escaped prisoner was unlawfully at large does not count as part of the service of the term of imprisonment imposed upon him.

Leschenko v. Ontario (Attorney General) - (1983), 1 C.C.C. (3d) 522, 44 N.R. 297, [1983] 1 F.C. 625 (F.C.A.)

- Time spent by an accused in custody in the United States by reason of offences committed by him in that jurisdiction while he was unlawfully at large from a Canadian penitentiary does not count against the unserved portion of the sentence in Canada notwithstanding the accused was later transferred to Canada to continue serving his sentence pursuant to the Transfer of Offenders Act. At common law the time during which an escaped prisoner is unlawfully at large does not count as part of the service of the term of imprisonment imposed upon him, and no statutory provisions had the effect of making time spent by the accused in custody in the United States count against his Canadian sentence.

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.)

- An inmate in a penitentiary serving a sentence under the Criminal Code is entitled to have unexecuted warrants of committal issued under provincial law received and duly executed by the CSC. This entails that such an inmate has the right to serve within the penitentiary the sentence imposed for provincial offences. However, the sentence for provincial offences must be served in accordance with provincial law. The decision of whether the provincial sentence is to be served consecutive to, or concurrent with, the penitentiary sentence falls exclusively within provincial jurisdiction.

Re McClarty - (1990), 58 C.C.C. (3d) 211, 112 N.R. 67, [1990] F.C.J. No.613 (F.C.A.)

- Time spent in custody in the United States serving a prison term there is not time "in custody" for the purposes of the Parole Act just as time serving a foreign sentence does not for that reason alone count as time served on an uncompleted Canadian sentence.

R v. Daniels - (1991), 65 C.C.C. (3d) 366, 6 C.R. (4th) 375, 93 Sask.R. 144, [1991] S.J. No.254 (Sask.C.A.)

- The respondent D was a native woman from Saskatchewan who had been convicted of second-degree murder. The Prison for Women at Kingston, Ontario, was the only penitentiary for women in Canada, although plans to build regional facilities had been announced. Under s731 of the Criminal Code D's sentence must have been served in a penitentiary. Accordingly, although s15 of the Penitentiary Act gave the Commissioner of Corrections a discretion as to which penitentiary in which any convict was to serve her sentence, D, almost certainly, was to be sent to Kingston. She was not eligible for the program under which female convicts serving penitentiary terms of up to six years may be directed by the Commissioner to serve at least part of the term in a provincial prison in Prince Albert. Such arrangements were authorized by s5 of the Prisons and Reformatories Act. D argued, and the trial judge found, that since the Kingston institution was the only penitentiary for women in Canada, the effect of s731 of the Criminal Code and s15 of the Penitentiary Act was that D and other native women from the prairie region would end up in Kingston, amounting to violations of sections 12 and 15(1) of the Charter. In allowing the appeal, the appeals court asserted that even assuming that the Commissioner of Corrections had no choice under s15 but to commit D to Kingston, that lack of choice was not imposed on him by s731 and/or s15, but by his failure to provide other facilities, incarceration in which would not result in alleged Charter violations. The very nature of the judges' order of committal, that D not be incarcerated in Kingston, confirms this view, for it assumed that the Commissioner has the power to make other arrangements. Accordingly, the Charter violation, if there was one, stemmed not from sections 731 and 15, but from an anticipated act or an actual default by the Commissioner of Corrections, that is, anticipated committal of D to Kingston, or more correctly, failure to provide penitentiary facilities which meet the requirements of the Charter. These things are independent of the sentencing process in the criminal trial. The trial judge's function ended with imposition of a sentence in a penitentiary - under the Criminal Code, she had no right to designate which penitentiary in which the sentence was to be served.