Blaylock v. Canada, (1985) 16 F.T.R. 161 (TD)

JudgeMuldoon, J.
CourtFederal Court (Canada)
Case DateApril 22, 1985
JurisdictionCanada (Federal)
Citations(1985), 16 F.T.R. 161 (TD)

Blaylock v. Can. (1985), 16 F.T.R. 161 (TD)

MLB headnote and full text

Joseph Blaylock (applicant) v. Her Majesty The Queen (respondent)

(T-761-85)

Indexed As: Blaylock v. Canada

Federal Court of Canada

Trial Division

Muldoon, J.

April 22, 1985.

Summary:

The accused Blaylock was convicted of escaping lawful custody and sentenced to six months in Federal penitentiary consecutive to any other sentence being served. On appeal the Ontario Court of Appeal varied the sentence to three months. Blaylock argued the effect of the appeal court's ruling was to make the three months concurrent to time served because the court did not specifically direct that the sentence was to be consecutive. He applied for mandamus ordering the Correctional Service of Canada to recalculate his sentence accordingly.

The Federal Court of Canada, Trial Division, dismissed his application.

(This 1985 decision is being reported at this time at the request of one of our readers).

Criminal Law - Topic 5803

Sentencing - Consecutive sentence - [See Criminal Law - Topic 6216 below].

Criminal Law - Topic 6216

Sentencing - Appeals - Variation of sentence - Effect on consecutive sentence - The accused was convicted of escaping lawful custody and sentenced to six months in Federal penitentiary consecutive to any sentence being served - On appeal the sentence was varied to three months - The accused argued that the three months was concurrent to any sentence being served, because the appeal court did not specifically state that the three months was consecutive - The Federal Court of Canada, Trial Division, rejected the accused's argument - The court noted that the six month sentence was not quashed but merely varied only to the extent that the term was reduced to three months.

Cases Noticed:

In re Kissick (No. 4) (1952), 5 W.W.R.(N.S.) 475 (Man. C.A.), refd to. [para. 11].

Marcotte v. Deputy Attorney-General of Canada (1974), 3 N.R. 613; 19 C.C.C.(2d) 257, refd to. [para. 11].

Foster v. R. (1976), 34 C.R.N.S. 213 (B.C.S.C.), refd to. [para. 11].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 137 [para. 4]; sect. 614 [para. 10].

Authors and Works Noticed:

Ruby, Sentencing (2nd Ed.) [para. 12].

Counsel:

No counsel disclosed.

This application was heard before Muldoon, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on April 22, 1985:

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