R. v. Carrignan, 2003 CanLII 19233 (ON CA)

DATE: 20030207

DOCKET: C36581

COURT OF APPEAL FOR ONTARIO

CATZMAN, DOHERTY and CRONK JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

John McInnes, for the appellant

Appellant

• and -

TIM STEPHEN CARRIGNAN

Paul Burstein, appearing as amicus curiae

Respondent

Heard: August 7, 2002

On appeal from the judgment of Justice Donald S. Ferguson dated June 18, 2001, reported at [2001] O.J. No. 2455.

CRONK J.A.:

1This Crown appeal involves the interpretation of s. 487.055(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46, as amended, and s. 139 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, as amended (the “CCRA”). The Crown applied under the former section for an authorization requiring the respondent to provide samples of bodily substances for the purpose of forensic DNA analysis. The application was dismissed on the ground that it had been brought out of time.

2The Crown argues that sentence merger under s. 139(1) of the CCRA applies to determine whether an offender “is serving a sentence of imprisonment of at least two years” for one or more sexual offences within the meaning of s. 487.055(1)(c) of the Criminal Code, and that its application was timely by virtue of the combined operation of s. 487.055(1)(c) of the Criminal Code and s. 139(1) of the CCRA. It asks that the appeal be allowed, and that this court make an order in the nature of mandamus compelling Payne J., who dismissed the Crown’s application, to exercise jurisdiction under s. 487.055(1)(c) concerning the authorization.

3For the reasons that follow, I have come to the conclusion that s. 139(1) of the CCRA does not operate in the manner asserted by the Crown. Although the Crown’s interpretation of the effect of s. 139 of the CCRA would facilitate the important social objectives of s. 487.055(1)(c) of the Criminal Code, I think that it is inconsistent with the limited purpose of s. 139 of the CCRA, recognized rules of statutory construction, and the intent of consecutive sentencing. In addition, if accepted, the Crown’s interpretation would lead to a significant extension of the reach of s. 487.055(1)(c) of the Criminal Code. I do not believe that such an extension can be supported in the absence of clear and unequivocal statutory language. Accordingly, I would dismiss the appeal.

I. FACTS

4The respondent was convicted of sexual assault on April 30, 1986, and was sentenced to a term of imprisonment of two years less one day, to be followed by two years probation. On October 2, 1995, he was convicted of five counts of sexual interference contrary to s. 151 of the Criminal Code, and was sentenced to five years imprisonment, concurrent on each count. On March 28, 1996, he was sentenced to thirty days imprisonment for failing to comply with a probation order. The thirty-day sentence was consecutive to his five-year sentence for the sexual interference convictions. The respondent’s criminal record, which dates from 1984, also includes various convictions for assaultive behaviour and drug and property-related offences.

5The DNA Identification Act, S.C. 1998, c. 37, as amended by S.C. 2000, c. 10, established a national DNA data bank and authorized judges to order persons found guilty of specified offences to provide a sample of their DNA for inclusion in the data bank. The statutory provisions governing the DNA data bank are incorporated in ss. 487.03 to 487.091 of the Criminal Code. Section 487.055(1) became effective on June 30, 2000. It does not refer to s. 139 of the CCRA.

6On October 26, 2000, the Crown applied ex parte under s. 487.055(1)(c) for an authorization to take samples of bodily substances from the respondent for forensic DNA analysis. By order dated October 29, 2000, Payne J. of the Ontario Court of Justice dismissed the Crown’s application on the basis that it was brought out of time because the respondent, on the date of the application, was not serving a sentence of imprisonment of at least two years for one or more sexual offences, as required by s. 487.055(1)(c).

7The Crown subsequently applied to the Superior Court of Justice for a writ of certiorari quashing the provincial court judge’s decision, and for an order of mandamus compelling the provincial court judge to exercise jurisdiction concerning the authorization application. By judgment dated June 18, 2001, Ferguson J. dismissed the Crown’s application for prerogative relief. The Crown appeals that judgment.

II. ISSUES AND POSITIONS OF THE PARTIES

8The issue on this appeal is whether s. 139(1) of the CCRA applies to merge consecutive sentences of imprisonment into one sentence for the purpose of determining whether, on the date of an application under s. 487.055(1)(c) of the Criminal Code, an offender “is serving a sentence of imprisonment of at least two years” for one or more sexual offences within the meaning of s. 487.055(1)(c). The constitutionality of s. 487.055(1)(c) is not challenged in this proceeding.

9The Crown asserts that, by operation of s. 139(1) of the CCRA, the respondent’s sentence of imprisonment for his sexual interference convictions and his thirty-day sentence of imprisonment for breach of probation were to be served contemporaneously, as one merged sentence. Consequently, the respondent’s sentence for his sexual interference convictions commenced on October 2, 1995 and ended on October 31, 2000, with the result that the Crown’s application on October 26, 2000 under s. 487.055(1)(c) of the Criminal Code was brought on a timely basis because the respondent was then “serving a sentence of imprisonment of at least two years” for one or more sexual offences.

10The amicus curiae submits that the respondent’s sentences for sexual interference and breach of probation were required to be served seriatim, that is, one after the other. Accordingly, the respondent’s sentence for his sexual interference convictions commenced on October 2, 1995 and expired on October 1, 2000, while his sentence for breach of probation commenced on October 2, 2000 and expired on October 31, 2000. Thus, the sentence of imprisonment being served by the respondent on October 26, 2000 did not relate to a sexual offence, and the prerequisites for a s. 487.055(1)(c) authorization were not met.

III. LEGISLATIVE CONTEXT

11The following provisions of the Criminal Code are relevant to this appeal:

487.055(1) A provincial court judge may, on ex parte application made in Form 5.05, authorize, in Form 5.06, the taking, from a person who

(c) before the coming into force of this subsection, had been convicted of more than one sexual offence within the meaning of subsection (3) and, on the date of the application, is serving a sentence of imprisonment of at least two years for one or more of those offences, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1) [emphasis added].

(3) For the purposes of subsection (1), “sexual offence” means

(a) an offence under any of the following provisions, namely,

(i) section 151 (sexual interference),

(vi) section 271 (sexual assault), ….

718.3(4) Where an accused

(a) is sentenced while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed,

the court that sentences the accused may direct that the terms of imprisonment that are imposed by the court or result from the operation of subsection 734(4) shall be served consecutively.

719(1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.

12Section 139 of the CCRA provides:

Multiple Sentences

139.(1) Where a person who is subject to a sentence that has not expired receives an additional sentence, the person is, for the purposes of the Criminal Code, the Prisons and Reformatories Act and this Act, deemed to have been sentenced to one sentence commencing at the beginning of the first of those sentences to be served and ending on the expiration of the last of them to be served.

(2) This section does not affect the time of commencement, pursuant to subsection 719(1) of the Criminal Code, of any sentences that are deemed under this section to constitute one sentence.

IV. ANALYSIS

(1) Section 487.055(1)(c) of the Criminal Code

(a) Statutory requirements of s. 487.055(1)(c)

13With the introduction of the DNA data bank provisions of the Criminal Code, legal authority was provided to obtain DNA samples: (i) at the investigative stage, pursuant to a warrant; (ii) at the conviction stage, as part of sentence; and (iii) retroactively, for those convicted offenders who meet the criteria set out in s. 487.055(1) of the Criminal Code.

14Section 487.055(1) applies only to persons who, before June 30, 2000, have been declared dangerous offenders under Part XXIV of the Criminal Code (s. 487.055(1)(a)), or who have been convicted of more than one murder committed at different times (s. 487.055(1)(b)) or of more than one sexual offence within the meaning of s. 487.055(3) (s. 487.055(1)(c)). Sexual interference and sexual assault are defined under s. 487.055(3) as predicate sexual offences for the purpose of s. 487.055(1)(c). They are also “primary designated offences” under s. 487.04 of the Criminal Code. Breach of probation is not a designated offence. As explained by Weiler J.A. in R. v. Briggs (2001), 2001 24113 (ON CA), 55 O.R. (3d) 417 at 421-22 (C.A.), leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 31:

Section 487.04 of the Criminal Code designates two categories of offences that are subject to DNA orders: primary and secondary offences….Primary offences are the most serious offences in the Criminal Code and include murder and sexual offences.

15A DNA data bank authorization cannot be obtained under s. 487.055(1)(c) unless all of the following prerequisites established by that section are satisfied:

i) the offender in respect of whom the authorization is sought must have been convicted of more than one sexual offence, within the meaning of s. 487.055(3), before June 30, 2000;

ii) on the date that the authorization is sought, the offender must be “serving a sentence of imprisonment of at least two years” for one or more of the sexual offences for which he or she was convicted before June 30, 2000; and

iii) the authorization must be sought for the purpose of forensic DNA analysis.

We are concerned here with the second prerequisite, that is, whether the respondent was “serving a sentence of imprisonment of at least two years” for one or more sexual offences, as defined under s. 487.055(3), when the Crown sought a DNA data bank authorization.

16Section 487.055(1)(c) has two temporal components. First, it focuses on the date of the offender’s convictions by requiring that the offender be convicted of more than one sexual offence “before the coming into force of [the] subsection”, that is, before June 30, 2000. That condition is satisfied here. Second, the section provides that the relevant sentence of imprisonment for a s. 487.055(1)(c) authorization is the sentence being served “on the date of the application”. The requirement that the offender be incarcerated at the time of the application reflects Parliament’s concern that DNA data bank authorizations be capable of enforcement. It also suggests that Parliament elected not to permit data bank authorizations under s. 487.055(1)(c) exclusively for historical sexual offences.

17Section 487.055(1)(c) also addresses the duration and type of sentence required to support an authorization application under that section. It requires that the offender’s sentence of imprisonment be “of at least two years” and that it be “for one or more” of the predicate sexual offences defined under s. 487.055(3). Those requirements reflect Parliament’s intention that retroactive DNA data bank authorizations be confined to recidivist offenders who have committed the most serious sexual offences. In this case, the respondent’s convictions for sexual assault and sexual interference, and the duration of his sentence for the latter offence, satisfy those requirements.

(b) Purpose of s. 487.055(1)(c)

18Section 487.055(1)(c) must be interpreted in its entire context and in view of the scheme of the DNA data bank legislation, its objects, and the intention of Parliament. As recently observed by McLachlin C.J.C. in R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 at 74-75 in connection with the interpretation of other sections of the Criminal Code:

Much has been written about the interpretation of legislation (see, e.g., R. Sullivan, Statutory Interpretation (1997); R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994); P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000)). However, E. A. Driedger in Construction of Statutes (2nd. ed. 1983) best captures the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87, Driedger states: “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” [emphasis added].

See also R. v. Jarvis, 2002 SCC 73 at para 77.

19Section 487.055(1)(c) was enacted as part of the DNA Identification Act. Section 3 of that Act reads:

3. The purpose of this Act is to establish a national DNA data bank to help law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act.

20The purpose of the DNA data bank legislation was considered by this court in Briggs and in R. v. F. (P.R.) (2001), 2001 21168 (ON CA), 57 O.R. (3d) 475. In the latter case, Rosenberg J.A., at pp. 485-86, provided a useful synopsis of the holdings in Briggs. They included the following:

(3) The state interest in obtaining a DNA profile from an offender is not simply law enforcement by making it possible to detect further crimes committed by [the] offender. Rather, the provisions have much broader purposes including the following:

1. Deter potential repeat offenders;

2. Promote the safety of the community;

3. Detect when a serial offender is at work;

4. Assist in the solving of “cold” crimes;

5. Streamline investigations; and

6. Most importantly, assist the innocent by early exclusion for investigative suspicion or in exonerating those who have been wrongfully convicted.

(4) Provisions in the Criminal Code and the DNA Identification Act restricting the use that can be made of the DNA profile and protecting against improper use of the information offer significant protection of the offender’s privacy.

(5) The procedures for seizures of bodily substances authorized by the provisions are of short duration and involve no, or minimal, discomfort. There is a minimal intrusion with no unacceptable affront to human dignity.

(6) A person convicted of a crime has a lesser expectation of privacy.

21Rosenberg J.A. further summarized the holdings in Briggs in the following manner in F. (P.R.) (at p. 486):

In balancing the offender’s right to privacy and security of the person against the state interests in obtaining the offender’s DNA profile, the court must consider the following. The legislation offers significant protections against misuse of the DNA profile information, thus minimizing an improper intrusion into the offender’s privacy. Having been convicted of a designated offence, the offender already has a reduced expectation of privacy. In the ordinary case of an adult offender the procedures for taking the sample have no, or at worst, a minimal impact on the security of the person. Thus, in the case of an ordinary adult offender there are important state interests served by the DNA data bank and few reasons based on privacy and security of the person for refusing to make the order.

22Although the court was concerned in F. (P.R.) and Briggs with data bank orders sought under ss. 487.051(1) and 487.052 rather than with an authorization application under s. 487.055(1)(c) of the Criminal Code, the court’s analyses in those cases emphasized the multiple objects of the DNA data bank legislation as a whole, and the important state purposes served by the entire legislative scheme.

23In addressing the approach to the granting of a DNA data bank order in F. (P.R.), Rosenberg J.A. stated (at pp. 488-89):

[I]f the offender has a record that includes offences described as primary designated offences, I would think it exceptional that the order not be made. In general, the more serious the record the less likely the court could exercise its discretion against making the order.

On balance, I would expect that in the vast majority of cases it would be in the best interests of the administration of justice to make the order under s. 487.051(1)(b) and s. 487.052, as the case may be. This follows simply from the nature of the privacy and security of the person interests involved, the important purposes served by the legislation and, in general, the usefulness of DNA evidence in exonerating the innocent and solving crimes in a myriad of situations.

24In my view, those observations inform the interpretive approach to the DNA data bank legislation, including s. 487.055(1)(c). They recognize, as held in Briggs, that the DNA data bank legislation involves minimal intrusion into the privacy interests and human dignity of affected offenders, and that those convicted of crimes, and serving terms of imprisonment, have significantly reduced expectations of privacy. Those factors, balanced against the important social objectives of the legislation, support a liberal interpretation of s. 487.055(1)(c) consistent with Parliament’s intention concerning the legislation as a whole and in conformity with the prerequisites for a data bank authorization set out in s. 487.055(1)(c).

(2) Section 139 of the CCRA

25Section 139 of the CCRA derives from amendments introduced in the late 1960s to Canada’s statutory parole scheme as first enacted by the Parole Act, S.C. 1958, c. 38. The national DNA data bank was established approximately thirty years later upon enactment of the DNA Identification Act. Thus, as conceded by the Crown in this case, it cannot be asserted that, by enacting s. 139 of the CCRA, Parliament intended to facilitate a national DNA profiling system. That fact, however, is not determinative of whether s. 139 of the CCRA applies to s. 487.055(1)(c) of the Criminal Code. Parliament is assumed to know the law when enacting legislation: R. Sullivan, Driedger on the Construction of Statutes, 3rd. ed. (Toronto: Butterworths, 1994) at 156-57. Accordingly, the question is whether, having regard to the wording and purpose of s. 139 of the CCRA, Parliament intended when enacting s. 487.055(1)(c) of the Criminal Code that s. 139 of the CCRA should apply to it.

26The amicus curiae argues that s. 139 of the CCRA has an administrative focus which is intended to simplify sentence administration for multiple offence sentences. Sentence merger was designed, it is said, to facilitate sentence calculation for parole and remission purposes. Accordingly, in determining under s. 487.055(1)(c) of the Criminal Code whether an offender “is serving a sentence of imprisonment of at least two years” for one or more sexual offences, the requisite calculation is distinct from, and exclusive of, any sentence for a non-sexual offence which, for sentence administration purposes, is deemed under s. 139 of the CCRA to merge with an offender’s sentence(s) for sexual offence(s).

27That submission is supported, in my view, by the legislative history of s. 139 of the CCRA, the wording of that section, the developed jurisprudence regarding s. 139, and recognized rules of statutory construction. I will consider each of these in turn.

(a) Legislative history of s. 139 of the CCRA

28When the Parole Act was first enacted in 1958, it contained no provision comparable to s. 139 of the CCRA. However, s. 101(1) of the Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c. 38 introduced the following section to the Parole Act:

11A. Where, either before or after the coming into force of this section,

(a) a person is sentenced to two or more terms of imprisonment, or

(b) an inmate who is in confinement is sentenced to an additional term or terms of imprisonment,

he shall, for all purposes of this Act, the Penitentiary Act and the Prisons and Reformatories Act, be deemed to have been sentenced, on the day on which he is so sentenced in the circumstances described in paragraph (a), or on the day on which he was sentenced to the term of imprisonment he is then serving in the circumstances described in paragraph (b), to a single term of imprisonment commencing on that day and ending on the last day that he would be subject to confinement under the longest of such sentences or under all of such sentences that are to be served one after the other, whichever is the later day.

29The effect of s. 11A was to deem multiple “terms of imprisonment” to be a single “term of imprisonment” for all purposes of the Parole Act, the Penitentiary Act and the Prisons and Reformatories Act. Section 11A derived from Bill C-150.¹ The explanatory notes which accompanied that legislative bill following first reading on December 19, 1968 stated:

The new section 11A would make it clear that sentences of imprisonment are to be treated as a single combined sentence in calculating terms of imprisonment, periods of remission and periods of mandatory supervision [emphasis added].

See also, the Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs concerning Bill C-150, House of Commons, 1st. Sess., 28th Parl., No. 15 (26 March 1969) at 729-31. Thus, the original purpose of sentence merger was to facilitate sentence calculation for remission and parole purposes.

30By An Act to amend the Parole Act, S.C. 1969-70, c. 31, s. 1, the following new subsection was introduced to the Parole Act:

11A. (2) This section does not affect the time at which any sentences that are deemed by subsection (1) to constitute one sentence commence pursuant to subsection (1) of section 624 [now s. 719(1)] of the Criminal Code.

31Various versions of s. 11A of the Parole Act were enacted after 1968. The section was renumbered as s. 14 of the Parole Act in the 1970 federal statute consolidation (R.S.C. 1970, c. P-2 and R.S.C. 1970 (1st Supp.), c. 31). In addition, the merger language of s. 11A(1), which deemed two or more “terms of imprisonment” to be “a single term of imprisonment”, was altered by S.C. 1969-70, c. 31, s. 1, to deem “any term or terms that resulted in…confinement” to constitute “one sentence consisting of a term of imprisonment” commencing and ending at specified times. In R. v. Dean (1977), 1977 1938 (ON CA), 35 C.C.C. (2d) 217 at 224 (Ont. C.A.), Lacourcière J.A. expressed the view that that change to the merger language signified an intention by Parliament that sentence merger was to apply to Criminal Code provisions, and to a sentence under the Criminal Code.²

32Section 14(1) was amended in 1978 to include a specific reference to the Criminal Code: see Miscellaneous Statute Law Amendment Act, 1978, S.C. 1977-78, c. 22, s. 19. The explanatory notes which accompanied the legislative bill that introduced that amendment indicated that the express reference to the Criminal Code was directed to ensuring that “sentence computation under subsection 14(1) would also apply for the purposes of the Criminal Code.”³ See also, House of Commons, Standing Committee on Justice and Legal Affairs, Minutes of Proceedings and Evidence, 3rd Sess., 30th Parl., No. 14 (7 March 1978) at 14:20. The amendment was regarded as technical in nature, was designed to achieve uniformity in the computation of sentences for parole and remission purposes, and was described as not effecting any substantive change in the law.

33The focus on sentence calculation in s. 14 of the Parole Act was reinforced in 1986 when sweeping changes to the parole system in Canada were introduced. By An Act to amend the Parole Act, the Penitentiary Act, the Prisons and Reformatories Act and the Criminal Code, S.C. 1986, c. 43, s. 10, s. 14(1) of the Parole Act was repealed and new provisions were introduced. Section 14(2) remained essentially unchanged. The

new s. 14(1) read as follows:

14(1) Where, either before, on or after the coming into force of this section, a person sentenced to a term of imprisonment that has not yet expired is sentenced to an additional term of imprisonment, the terms of imprisonment to which the person has been sentenced shall, for all purposes of the Criminal Code, the Penitentiary Act, the Prisons and Reformatories Act and this Act, other than subsections (1.1) and (1.2), be deemed to constitute one sentence consisting of a term of imprisonment commencing on the earliest day on which any of the sentences of imprisonment commences and ending on the expiration of the last to expire of such terms of imprisonment.

34In introducing the 1986 amendments, the Hon. Warren Beatty, then Solicitor General of Canada, stated with reference to s. 14:

[T]hese are housekeeping amendments designed to clarify the calculation and administration of sentences, and to facilitate the operations of the Correctional Service of Canada, the National Parole Board and the provincial correctional institutions.

Of primary concern with respect to the Parole Act which Bill C-68 addresses is that of ensuring that sentences of inmates confined in federal penitentiaries are calculated so as to accurately reflect the intent of the judge who sentenced the offender. Section 14 of the Parole Act was originally enacted to facilitate the administration of sentences by correctional authorities. The section attempts to achieve that purpose by deeming different terms of imprisonment which were imposed either at the same sittings of court or at separate occasions, and for which there would normally be different parole eligibility dates and release dates, to constitute one single sentence for which there is only one parole eligibility date and one release date. I emphasize that the deeming provision does not modify the duration of the sentences imposed by the courts.

The concern we are trying to address with this particular provision arose from an instance where an individual received two separate sentences for two separate offences. As a result of a provision in the law which was a technicality, the courts found that this individual, between the completion of his incarceration for his first sentence and incarceration for his second sentence, was allowed out on parole in the meantime. It was a provision which, on its face, made very little sense.

For example, under the present Section 14, situations have arisen where a judge has sentenced an offender to a substantial term of imprisonment only to find that the offender is immediately eligible for, or indeed is released on, parole due to the effect of combining the new sentence with the old. Such anomalous results are a source of great concern both to the public and to correctional authorities, and appropriate amendments are contained in Bill C-68 to correct these unintended effects in sentence calculation [emphasis added].

(See House of Commons Debates, 1st. Sess., 33rd Parl., Vol.V, (12 September 1985) at 6560-61).

35Subsequently, upon introduction of the CCRA in 1992, the Parole Act and the Penitentiary Act were repealed, and s. 139 of the CCRA replaced former s. 14 of the Parole Act.⁴ Three years later, in 1995, various amendments to the CCRA were enacted. By An Act to amend the Corrections and Conditional Release Act, the Criminal Code, the Criminal Records Act, the Prisons and Reformatories Act and the Transfer of Offenders Act, S.C. 1995, c. 42, s. 54, s. 139 of the CCRA was replaced with the version of that section now in force. The purpose of s. 139 of the CCRA was described to the Senate Standing Committee on Legal and Constitutional Affairs by the Director General, Corrections, of the Ministry of the Solicitor General of Canada in these terms:

To deal with the complexity of sentences and the calculation of eligibility dates that allow us to administer sentences in a rational way, the technique of sentence-merging was developed to establish a single set of eligibility dates on the total prison term comprised of however many sentences. To do that, the Corrections and Conditional Release Act, or CCRA, provides for all sentences to be merged into a single term. It does not change the way consecutive and concurrent sentences work together. That is a matter of law. However, it allows us to consider the combination of all sentences as a single prison sentence that starts on the first day of the first sentence and ends on the last day of the last sentence. It allows us to treat that combination of prison terms as a combination to calculate the dates to allow us to administer the sentence [emphasis added].

(See Senate Standing Committee on Legal and Constitutional Affairs, Proceedings, 1st Sess., 35th Parl., No. 68 (30 November 1995) at 68:6).

36Accordingly, the historical antecedents of s. 139 of the CCRA confirm, as urged by the amicus curiae in this case, that the device of sentence merger was intended to facilitate sentence calculation for sentence administration purposes. As emphasized by the then Solicitor General of Canada in 1995, it was not intended to “change the way consecutive and concurrent sentences work together”.

(b) Wording of s. 139 of the CCRA

37The wording of s. 139 of the CCRA is an important indicator of Parliament’s intention regarding the purpose and ambit of the section. In my view, the following features of s. 139 are significant.

38When sentence merger was first introduced to the Parole Act in 1968, it applied for “all purposes” of the Parole Act, the Penitentiary Act and the Prisons and Reformatories Act: S.C. 1968-69, c. 38, s. 101(1). That language was retained in 1978, when specific reference to the Criminal Code was introduced to the sentence merger provision of the Act (see S.C. 1977-78, c. 22, s. 19), and for several years thereafter. However, when the CCRA was enacted in 1992, the word “the” was substituted for the word “all” so that the phrase read “for the purposes of the Criminal Code”: see S.C. 1992, c. 20, s. 139(1)⁵. That substitution, it can be argued, suggests that s. 139(1) of the CCRA is intended to apply to Criminal Code provisions, and to sentences under the Criminal Code, for only limited purposes.

39As currently worded, there is nothing in s. 139(1) which purports to merge multiple sentences into one sentence for all purposes. Indeed, s. 139(2) establishes a specific limitation on the ambit of s. 139(1). As I mentioned, the predecessor to the current s. 139(2) was first introduced to the Parole Act by S.C. 1969-70, c. 31, s. 1. Although the wording of the section was subsequently amended, no material change to the section has been introduced since 1969. For convenience, I again set out the terms of s. 139(2):

This section does not affect the time of commencement, pursuant to subsection 719(1) of the Criminal Code, of any sentences that are deemed under this section to constitute one sentence.

40The language of s. 139(2) must be interpreted in the context of the entirety of s. 139. Section 139(1) addresses the time at which a merged sentence is deemed to commence and to expire. It provides:

[T]he [affected] person is…deemed to have been sentenced to one sentence commencing at the beginning of the first of [his or her sentences] to be served and ending on the expiration of the last of them to be served.

41However, by operation of s. 139(2), the time of commencement of the sentences comprising a merged sentence, as stipulated by s. 719(1) of the Criminal Code, is unaffected. Section 719(1) provides that a sentence commences “when it is imposed, except where a relevant enactment otherwise provides.” How can s. 139(1), which establishes that a merged sentence commences at the beginning of the first constituent sentence imposed, be reconciled with s. 139(2), which stipulates that s. 139(1) does not change the commencement date of any sentence as provided under s. 719(1) of the Criminal Code?

42At paragraphs 20 and 22 of its factum, the Crown argues:

It is important to understand that s. 139 need not be construed as prescribing the legal expunction of individual sentences within a merged sentence. It is better understood as a provision that rationalises the chronological manner in which multiple consecutive sentences are served. At its heart lies the simple and rational proposition that when an offender is or becomes subject to two or more consecutive sentences, he must serve those sentences contemporaneously, not seriatim. In the present case, the essential character of the sentence imposed for the sexual offences is not altered by s. 139: it is still a five-year sentence, imposed for sexual offences. Once the subsequent sentence was imposed, s. 139 simply operated to affect the rate at which the five-year sentence could be served.

When one sentence is passed, it is served at the rate of one day for each calendar day served. When a second (consecutive) sentence is imposed, the rate of service of the first sentence slows down to reflect the fact that the offender must now serve two sentences [emphasis added].

43The thrust of the Crown’s argument concerning the combined operation of s. 139 of the CCRA and s. 487.055(1)(c) of the Criminal Code, as I understand it, is that consecutive sentences merged under s. 139 of the CCRA commence immediately upon imposition, and all constituent sentences comprising the merged sentence are served contemporaneously, but over a longer period, to reflect the fact that the offender is serving more than one sentence. In my view, that submission ignores the limited purpose of s. 139, and the intent of consecutive sentencing.

44When the predecessor to the current s. 139(2) was enacted, the intended effect of the section was described in the Senate by the Hon. J. Harper Prowse as follows:

The ordinary principle is that a sentence shall begin on the day on which the sentence is imposed and shall run to the expiration of the time imposed, less the statutory remission which is one-quarter of the sentence, plus any time off for good behaviour which is calculated at three days a month and which is called “earned time remission.”

[A] year ago when the act [sic] was amended, it was thought that it had been made quite clear that when a man is convicted at a particular time and then later is convicted and sentenced on another offence, that the date of the commencement of the sentence on the second offence should be the day on which the second offence was imposed and not from the day of the sentence for the first offence.

Let us take another example using specific dates. Suppose that on January 1 of this year a man is convicted and sentenced to two years plus a day in penitentiary. Ordinarily he would be due for release on January 2, 1972. But let us further suppose that on July 1, 1970, he is sentenced to a further term of two years. You would then expect his release to be on July 1 or July 2, 1972. In other words, the total sentence he would have to serve would date from January 1, 1970 until July 1, 1972. That is to say, the two sentences would overlap except for the first six months and the last six months. Now, this question came before a judge in one of our courts, and his interpretation and reading of the Act was that when a man was convicted of a subsequent offence, while he was already in jail, even if such conviction followed six months after the original sentence, and he was sentenced to a further two years, that sentence would also date from the original date of the first sentence. In other words, honourable senators, the second sentence would date as from the date of the imposition of the first sentence. This could lead to the ridiculous situation where a man could be freed months or years before it was intended he should be [emphasis added].

(See Senate Debates, 2nd Sess., 28th Parl., Vol. I (5 February 1970) at 498). As appears from those observations, the intended effect of s. 139(2) is that sentences should commence on the day they would ordinarily commence according to the Criminal Code as if s. 139(1) did not exist. The mischief at which s. 139(2) is directed suggests, in the context of sentences imposed on different dates, that s. 139(2) is intended to ensure that each sentence retains its distinct character.

(c) Developed jurisprudence concerning s. 139 of the CCRA

45Section 139(1) does not distinguish between concurrent and consecutive sentences. Section 719(1) of the Criminal Code provides that a sentence commences when it is imposed “except where a relevant enactment otherwise provides.” It has been held by this court that s. 645 of the Criminal Code, the predecessor to the current s. 718.3(4) concerning consecutive sentences, was a “relevant enactment” within the meaning of s. 719(1) of the Criminal Code: R. v. Zitek (1986), 1986 4692 (ON CA), 30 C.C.C. (3d) 60 at 61 (Ont. C.A.).

46Former s. 645(4)(c) of the Criminal Code authorized a court to direct that terms of imprisonment be “served one after the other” where an accused was convicted of more than one offence before the same court at the same sittings. In Zitek, Dubin J.A. stated (at p. 61):

Section 645 is a relevant enactment [for the purpose of the predecessor section to the current s. 719(1) of the Criminal Code] which permits the imposition of consecutive sentences [emphasis added].

Accordingly, the court viewed consecutive sentences as sentences to be “served one after the other”.

47Dubin J.A. in Zitek also addressed the import of then s. 14 of the Parole Act. In connection with s. 14(2), the predecessor to s. 139(2), he stated (at p. 63):

It is to be noted that s-s. (2) reconfirms that, notwithstanding the manner of computing consecutive sentences for the purpose of the Parole Act, s. 14 does not affect the time at which the sentences are deemed to commence pursuant to s. 649(1) [now s. 719(1)] of the Criminal Code.…

The decision in Zitek thus confirmed that s. 14 of the Parole Act was directed to the manner of calculating or computing consecutive sentences for parole eligibility purposes, and did not affect the time of commencement of consecutive sentences or the individual character of consecutive sentences comprising a merged sentence.

48The language of s. 645 of the Criminal Code was amended subsequent to the decision in Zitek to delete the phrase “served one after the other” and to substitute the word “consecutively”: see S.C. 1995, c. 22, s. 6; S.C. 1997, c. 18, ss. 106, 141. The word “consecutive” is defined in The Oxford English Reference Dictionary, 2nd ed. (London: Oxford University Press, 2001) as “following continuously” and “in unbroken or logical order”. It connotes continuity in the sense of successive or uninterrupted sequence. In R. v. Cadeddu (1980), 1980 2968 (ON CA), 57 C.C.C. (2d) 264 (Ont. C.A.), this court stated (at p. 266):

We construe “consecutively” as meaning, in its context and in accordance with its standard dictionary definition, “following immediately upon” the serving of the balance of the sentence being served at the time….

(See also, R. v. Sinclair (1972), 1972 1297 (ON CA), 6 C.C.C. (2d) 523 (Ont. C.A.)).

49In my view, the combined effect of ss. 139(1) and (2) of the CCRA in connection with consecutive sentences is to ensure, for parole eligibility purposes, that the term of imprisonment of each consecutive sentence is totalled and parole eligibility is calculated based on the total term of the merged sentence. The intent and ambit of the sections are directed to that outcome, and to no broader purpose.

50That conclusion is supported by several appellate decisions, in addition to Zitek. For example, in R. v. Robillard (1985), 1985 3530 (QC CA), 22 C.C.C. (3d) 505 (Que. C.A.), leave to appeal to S.C.C. refused [1986] 1 S.C.R. xiii, the court stated (at p. 509):

But if the effect of s. 14(1) of the Parole Act is to create one sentence where two or more terms of imprisonment have been imposed, there is certainly nothing in that section which precludes that single sentence from having, among its components, sentences which are consecutive to one another when the court or courts has directed that they be served in that manner and the requirements of s. 645(4) [now s. 718.3(4)] of the Criminal Code have been met.

While s. 14(1) of the Parole Act creates one sentence consisting of a single term of imprisonment, and in this case that one sentence would be an indeterminate sentence…the terms of imprisonment which [the] appellant is serving concurrently with his indeterminate sentence cannot be ignored. They form part of that one sentence created under s. 14(1).

Whether these subsequent sentences were consecutive to one another or concurrent with one another, the terms of s. 14(1) require that the single sentence cannot end any earlier than “…the expiration of the last to expire of such terms of imprisonment”.

I take that to mean that the single sentence, although indeterminate once the expiration of the last term of imprisonment to expire has been reached, cannot end at least until that event occurs.

Certainly the expiration dates of the subsequent sentences must be considered or the phrase in s. 14(1) “the expiration of the last to expire of such terms of imprisonment” can have no meaning. How can one have a single sentence to end on the expiration of the last of the component terms of imprisonment to expire unless these component terms are calculated and considered? The only possible way they can be used in fixing the single sentence is by establishing the date when the sentence is to end, subject thereafter to the preventive detention provisions of the Code [emphasis added].

51It is apparent that the court in Robillard was of the view that s. 14(1) of the Parole Act did not cause sentences, whether consecutive or concurrent, to lose their distinct nature. Rather, in order to ascertain the last day an offender was subject to detention, the constituent sentences were blended so that parole eligibility could be determined. However, the “merged” sentence retained its component parts.

52In R. v. Currie (1982), 1982 3887 (ON CA), 65 C.C.C. (2d) 415 (Ont. C.A.), the appellant was sentenced to nine months consecutive to any sentence he was then serving, plus three years probation. At the time, the appellant had sixteen months remaining on a previous sentence. Thus, he was subject to another twenty-five months imprisonment. The Criminal Code does not permit a probation order to attach to a sentence that exceeds two years. (See s. 731(1)(b) of the Criminal Code.) The appellant argued that, by virtue of then s. 14 of the Parole Act, his sentences had merged into one sentence of twenty-five months, making the probation order illegal. Thorson J.A., for this court, held at p. 416 that s. 14 of the Parole Act did not apply to render the probation order illegal. The implication of that holding is that sentence merger did not operate where merger was not being used to calculate parole eligibility. See also R. v. Hackett (1986), 1986 1183 (BC CA), 30 C.C.C. (3d) 159 (B.C. C.A.).

53In support of its interpretation of s. 139 of the CCRA, the Crown relies on the decisions of this court in R. v. Dean, supra and R. v. Lauzon (1981), 1981 3278 (ON CA), 58 C.C.C. (2d) 20 (Ont. C.A.). Those cases do not assist the Crown. In Dean, the court was concerned with the effect of s. 14 of the Parole Act on the calculation of the total length of multiple sentences for the purpose of determining the impact of a subsequently imposed sentence on an offender’s ultimate release date. The nature of the constituent sentences, which together comprised the merged sentence, was not in issue. In Lauzon, the interaction between the escape lawful custody provisions of the Criminal Code and s. 14 of the Parole Act was considered. In reliance on Dean, this court held at pp. 30-31 that s. 14(1) applied to blend a sentence for escape into pre-existing or subsequently imposed sentences, “for the purposes of determining the length of time to be served, and the calculation of earned and (formerly) statutory remission.”

(d) Other considerations

54Two additional considerations favour rejection of the Crown’s position regarding s. 139 of the CCRA. First, as emphasized in Lauzon, regard must be had to the intention of the sentencing judge. Here, the respondent’s thirty-day sentence for breach of probation was imposed approximately six months after the respondent was sentenced for his sexual interference convictions. In imposing that thirty-day sentence, the sentencing judge clearly intended that the additional thirty days imprisonment be served by the respondent upon completion of his sentence for his earlier sexual offence convictions.

55Second, in accordance with recognized rules of statutory construction, it is not unreasonable to conclude that had Parliament intended s. 487.055(1)(c) of the Criminal Code and s. 139 of the CCRA to have the combined effect urged here by the Crown, express reference to s. 139 of the CCRA would have been included in the DNA data bank legislation, or Parliament’s intention would be manifest by other clear and unequivocal statutory language.

56One final observation is useful, in my view. I have had the benefit of reading the draft concurring reasons of Doherty J.A. I agree with his conclusion that s. 487.055(1)(c) of the Criminal Code is a transitional provision, the application of which does not result in unfairness to those persons who are candidates under that section for DNA testing. Accordingly, like Doherty J.A., I reach my conclusion in this case without reliance on any arguments of unfairness or arbitrariness.

V. DISPOSITION

57Accordingly, for the reasons given, I conclude that the Crown’s position concerning the effect of sentence merger on the respondent’s sentence is inconsistent with the limited purpose of s. 139 of the CCRA, recognized rules of statutory construction, and the intent of consecutive sentencing. It is also not supported by clear and unequivocal statutory language. I would dismiss the appeal.

“E.A. Cronk J.A.”

DOHERTY J.A. (Concurring):

58This appeal raises a difficult question of statutory interpretation arising out of the interaction of s. 487.055(1)(c) of the Criminal Code, R.S.C. 1985, c. C-46, as amended, and s. 139 of the Corrections and Conditional Release Act, S.C. 1992, c. 20, as amended (the “CCRA”). I have had the benefit of reading the thorough and lucid reasons of Cronk J.A. I agree with her conclusion, but reach that result by a different route. Contrary to my colleague’s view, I think s. 139(1) does apply to s. 487.055(1)(c). It does not, however, have the effect urged by the Crown.

I

59Section 487.055(1) of the Criminal Code provides that a court may authorize the taking of a bodily sample for purposes of DNA analysis from certain persons who were convicted and sentenced before the provisions authorizing the taking of such samples came into effect on June 30, 2000. The section addresses three categories of offenders. The Crown relies on s. 487.055(1)(c):

487.055(1) A provincial court judge may, on ex parte application made in Form 5.05, authorize, in Form 5.06, the taking, from a person who

(c) before the coming into force of this subsection, had been convicted of more than one sexual offence within the meaning of subsection (3) and, on the date of the application, is serving a sentence of imprisonment of at least two years for one or more of those offences, for the purpose of forensic DNA analysis, of any number of samples of one or more bodily substances that is reasonably required for that purpose, by means of the investigative procedures described in subsection 487.06(1) [emphasis added].

60Section 487.055(1)(c) targets repeat sexual offenders who are serving a sentence for a sexual offence at the time of the application for the taking of the bodily sample. This group is targeted because of the serious risk that members of the group may have committed, or may in the future commit, sexual offences in respect of which DNA evidence could be particularly helpful. The members of this group, by virtue of their incarceration, also have a reduced expectation of privacy.

61The section imposes two preconditions on the exercise of the jurisdiction to make an order for the taking of bodily samples. The person who is the subject of the application must have at least two convictions for sexual assault. That person must also be “serving a sentence of imprisonment of at least two years for” one or more sexual offences on the date that the application for the taking of the sample is made. To meet this requirement, the person who is the subject of the application must have both received a sentence of at least two years for sexual offences and he or she must be serving that sentence when the application is made.

62The respondent had multiple prior convictions for sexual offences as of October 26, 2000 when the Crown brought this application. As of that date, he was serving a sentence in the penitentiary and had received a sentence of more than two years for sexual offences. The crucial question is – at the date of the application, was the respondent serving the sentence of more than two years imposed for the sexual offences?

63The respondent had received five years on five counts of sexual interference on October 2, 1995. He had received thirty days consecutive to that sentence for breach of probation in March 1996. It is clear that had the respondent not been convicted of breach of probation in 1996 and received a consecutive sentence, his five year sentence imposed on the sexual offences in October 1995 would have expired on October 1, 2000, some three weeks before the Crown brought this application. It is equally clear, however, that had the respondent not been convicted of the sexual interference charges and received a sentence of five years, he would not have been serving a sentence on the breach of probation charge on October 26, 2000. That sentence would have expired in April 1996, but for the sentence imposed on the sexual interference charges.

64The respondent submits that his five year sentence on the sexual interference charges commenced on October 2, 1995 and could not end any later than October 1, 2000. He contends that the subsequent imposition of a consecutive sentence on the breach of probation charge did not extend the five year sentence so that it could not be said that he was serving a sentence “for sexual offences” beyond October 1, 2000.

65The Crown relies on s. 139 of the CCRA:

139.(1) Where a person who is subject to a sentence that has not expired receives an additional sentence, the person is, for the purposes of the Criminal Code, the Prisons and Reformatories Act and this Act, deemed to have been sentenced to one sentence commencing at the beginning of the first of those sentences to be served and ending on the expiration of the last of them to be served.

(2) This section does not affect the time of commencement, pursuant to subsection 719(1) of the Criminal Code, of any sentences that are deemed under this section to constitute one sentence [emphasis added].

66Section 139(1) creates a legal fiction. It provides that persons who are subject to multiple sentences are “deemed to have been sentenced to one sentence”. That deemed sentence is taken as beginning on the first day of the first sentence and ending on the expiration of the last sentence. Section 139(2) limits the legal fiction created by s. 139(1) by declaring that the fiction does not affect the time at which any sentence imposed under the Criminal Code commences. A sentence imposed under the Criminal Code begins the day the sentence is imposed (s. 719(1)) or when a previous sentence has been served if the sentence is made consecutive to that previous sentence (s. 718.3(4)).

67The respondent received a five year sentence on the sexual interference charges on October 2, 1995. He was not serving any other sentence at that time. His sentence commenced on October 2, 1995. In March 1996, he received a sentence of thirty days consecutive to the five year sentence. When this sentence was imposed, the respondent became a person who was subject to an unexpired sentence and had received an additional sentence. Therefore, s. 139 of the CCRA became applicable to the respondent. Under the terms of that section, he was deemed to be serving a single sentence. That single sentence was deemed to have commenced on October 2, 1995, the first day of the first sentence. That single sentence was also deemed to end when the sentence on the breach of probation charge expired. To determine the expiration date of that sentence, it is necessary to first determine when that sentence commenced. The commencement date is unaffected by the deeming provisions in s. 139(1). Since the sentence on the breach of probation charge was consecutive to the five year sentence imposed on the sexual interference charges, it could not begin until the five year sentence expired on October 1, 2000. It expired thirty days later on October 31, 2000. That date, therefore, became the expiry date of the deemed single sentence imposed by virtue of s. 139(1). The net effect of s. 139(1) was that the respondent was serving a single sentence of five years and thirty days beginning on October 2, 1995 and ending on October 31, 2000.

68By its terms, s. 139(1) of the CCRA applies for “the purposes of the Criminal Code”. One of those purposes is found in s. 487.055(1)(c), which makes certain persons who are serving a sentence for a sexual offence candidates for an order permitting the taking of a bodily sample for DNA purposes. Section 139(1) defines the sentence the respondent was serving for the purposes of s. 487.055(1)(c). He was serving a sentence of five years and thirty days beginning on October 2, 1995 and ending on October 31, 2000.

69Section 139(1) of the CCRA does not, however, relate any part of the deemed single sentence to a specific offence. This is understandable given the purpose of the section. It is designed to facilitate sentence calculation for the purpose of determining matters such as the total period of incarceration imposed and parole eligibility. It is not necessary to relate any part of the deemed sentence to specific offences to achieve these purposes. The deeming provision in s. 139(1) of the CCRA does not assist in determining whether the respondent was serving a sentence for a sexual offence when this application was brought. Consequently, although I would hold that s. 139(1) of the CCRA applies to s. 487.055(1)(c), it does not answer the crucial question.

70I approach the determination of whether the respondent was serving a sentence for a sexual offence when this application was made without regard to the legal fiction created by s. 139(1) of the CCRA. Instead, I consider the sentences that were actually imposed on the respondent. Sentences are imposed for specific offences. To determine which part of a person’s incarceration relates to a specific offence, one must consider the actual sentences imposed and the chronology of their imposition. The respondent received a five year sentence for the sexual interference charges. That sentence began on October 2, 1995. Absent an applicable deeming provision, a subsequent sentence could not extend the length of the sentence the respondent received for the sexual offences. The incarceration imposed for those offences ended on October 1, 2000. In my view, the respondent was serving the sentence imposed for the breach of probation when this application was made. The commencement of his sentence for the breach of probation had been delayed until the completion of his sentence for the sexual offences.

71In coming to this conclusion, I do not rely on the arguments of arbitrariness or unfairness advanced on behalf of the respondent. Section 487.055(1)(c) is a transitional provision. At some time in the future it will no longer have application. All transitional provisions have an element of arbitrariness to them. I see nothing in this section which suggests arbitrariness beyond that which is endemic to a transitional provision.

72I also would not describe as unfair a provision which allowed the testing of individuals who were repeat sexual offenders, had received a sentence of at least two years for one of those sexual offences, and were also at the time of the application serving a sentence for some other offence. It seems to me that those persons pose at least as great a risk to commit further sexual offences as do sexual offenders who have not committed other non-sexual offences for which they are in custody.

73In coming to my conclusion, I rely exclusively on the language used in s. 487.055(1)(c). As I have explained above, on that wording the person must be serving a sentence for a sexual offence when the application is brought. The respondent had completed the sentence imposed for the sexual interference charges at the time the application was brought.

“Doherty J.A.”

CATZMAN J.A. (Concurring):

74I have had the opportunity to read the draft reasons for judgment prepared by my colleagues Doherty J.A. and Cronk J.A.

75Cronk J.A. would dismiss the appeal on the ground that the Crown’s interpretation of s. 139(1) of the Corrections and Conditional Release Act is inconsistent with that section’s limited purpose, with recognized rules of statutory construction and with the intent of consecutive sentencing, and is not supported by clear and unequivocal statutory language, with the result that the section does not apply to make the Crown’s application for samples of the respondent’s bodily substances timely within the contemplation of s. 487.055(1)(c) of the Criminal Code.

76Doherty J.A. would dismiss the appeal on the ground that, although s. 139 of the Corrections and Conditional Release Act applies to determine the sentence being served by the respondent, it does not determine whether the respondent is serving a sentence for a sexual offence as required by s. 487.055(1)(c) of the Criminal Code. In his view, that determination must be made without reference to the legal fiction created by s. 139.

77I agree with Cronk J.A. that s. 139 does not apply to the circumstances of the case before this court but, if s. 139 were otherwise applicable, I agree with Doherty J.A. that the sentence the appellant was serving at the date of the Crown’s application was not a sentence for a sexual offence within the meaning of s. 487.055(1)(c).

78I would dismiss the appeal.

Footnotes

1. 1An Act to amend the Criminal Code, the Parole Act, the Penitentiary Act, the Prisons and Reformatories Act and to make certain consequential amendments to the Combines Investigation Act, the Customs Tariff and the National Defence Act, 1st Sess., 28th Parl., 1968, cl. 101(1).
2. 2Section 11A(1) was renumbered to s. 14(1) in the 1970 statute consolidation by R.S.C. 1970, c. P-2 and R.S.C. 1970 (1st Supp.), c. 31, s. 1.
3. 3Bill C-41, An Act to correct certain anomalies, inconsistencies, archaisms, errors and other matters of a non-controversial and uncomplicated nature in the Revised Statutes of Canada, 1970, and other Acts subsequent to 1970, 3rd Sess., 30th Parl., 1978, cl. 19 (1st reading 4 April 1978).
4. 4Section 14 of the Parole Act was renumbered as s. 20 by R.S.C. 1985, c. P-2 and R.S.C. 1985 (2nd Supp.), c. 35, s. 9. Thus, technically, s. 139 of the CCRA replaced s. 20 of the Parole Act.
5. 5The French version of s. 139(1) of the CCRA evolved somewhat differently than the English version. When the predecessor to s. 139(1) was first enacted, the French version provided that sentence merger applied “for all the purposes” of the Parole Act, the Penitentiary Act and the Prisons and Reformatories Act: S.C. 1968-69, c. 38, s. 101(1). When s. 139(1) was amended in 1986, the French version was amended to read “for the application of” the Criminal Code: see S.C. 1986, c. 43, s. 10. That language was retained when the CCRA was enacted in 1992. Thus, although the timing of the changes to the language of s. 139(1) in the English and French versions of the section differed, neither version, as amended, retained the word “all”.