I am informed by the department that some tribunals have expressed a doubt as to the power of the wardens and officers to use the same means in arresting or preventing the escape and effecting the recapture of convicts who were escaping as if the convict had been convicted or was under imprisonment for felony. Practically, under the Criminal Code, the former distinction between a felony and a misdemeanour has been abolished, but still there is a doubt as to whether the same force could be used in arresting a prisoner or preventing his escape, when the offences are not those which were felonies under the former act.
As my right hon. friend knows, there was an amendment made to the Criminal Code last year giving prisoners the right of appeal against their conviction, but no amendment was made to the Penitentiaries Act to say where those prisoners should be kept until'their case was finally disposed of. Of course, the penitentiary is a place of punishment, and is not a proper place for the detention of prisoners whose fate has not been decided, and who are not considered as convicts. The purpose of this section is to provide that they shall be kept in a common gaol until their appeal has been disposed of.
There are rules of the various courts that under the act you must determine the period of delay during which the appeal must be made. Until that delay has expired they shall be kept in the common gaol unless before the expiration of the delay they serve notice that they want to appeal, and then they shall be moved to the penitentiary.
This seems to me to be a wrong principle to embody in legislation of this kind; that is, it is not necessary to anticipate appeals in all cases. If a man does not wish to go to the penitentiary he can give notice of appeal. In that case, of course, it would be quite proper that he should not be taken to the penitentiary.
advantage to the man to act as my hon. friend suggests, because he will be in gaol pending the appeal, and the time in which the appeal may be entered will not count on his sentence. He will have to serve the full period of the sentence if he goes to the penitentiary.
Any period during which a convict is detained in the gaol or other place of confinement pursuant to the authority of this section shall not be computed as time served in the execution of his sentence.
I understand it has been customary in the past to leave such a matter to the discretion of the judge-that is, as to whether time served in the place of confinement prior to the execution of a sentence shall count as part of the prisoner's term.
that into consideration, after this bill has been passed, just as they have been doing previously. However, my hon. friend will understand this: A prisoner who is awaiting conviction cannot be treated as a man who is serving a sentence-he is not as a matter of fact-and by lodging an appeal he hopes to escape conviction. He is in the position of a man who is awaiting his trial. In the case of the man who has been tried the time during which he is in gaol is not computed in connection with his sentence. The judge, of
course, can impose a lighter sentence if he pleases, but under the law the time of the prisoner's stay in gaol does not form part of his sentence.
The minister's explanation convinces me that this subsection is not necessary. I would therefore suggest that it be withdrawn, leaving the law as it is at present. The subsection specifically states that the time served in gaol shall not be computed as part of the sentence: the minister is laying down a definite regulation in this bill.
I agree wholly with what the minister says; but suppose the judge on appeal says the sentence shall be reduced from six years to four years? Then the question comes, does the time the prisoner has served count? This law applies and says it does not; he must serve four years in the penitentiary.