Date: 20070511
Docket: A-344-06
Citation: 2007 FCA 184
CORAM: LÉTOURNEAU
J.A.
EVANS
J.A.
SHARLOW
J.A.
BETWEEN:
DAVID R. JOLIVET
Appellant
and
THE ATTORNEY GENERAL OF CANADA and
THE COMMISSIONER OF CORRECTIONS
Respondents
REASONS FOR JUDGMENT
SHARLOW J.A.
[1]
The
appellant David Jolivet is currently incarcerated in a federal penitentiary as
the result of being transferred to Canada from the United States under the Transfer
of Offenders Act, R.S.C. 1985, c. T-15. He applied to the Federal Court for
judicial review of a decision of the Correctional Service of Canada (CSC)
determining his statutory release date. His application was dismissed (2006 FC
811). Mr. Jolivet has appealed that decision.
[2]
The
Transfer of Offenders Act reads in relevant part as follows:
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4. Where a Canadian offender is transferred to Canada, his
finding of guilt and sentence, if any, by a court of the foreign state from
which he is transferred is deemed to be a finding of guilt and a sentence
imposed by a court of competent jurisdiction in Canada for a
criminal offence.
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4.
Lorsqu'un délinquant canadien est transféré au Canada, sa déclaration de
culpabilité et sa sentence, le cas échéant, par un tribunal de l'État
étranger d'où il est transféré sont présumées être celles qu'un tribunal
canadien compétent lui aurait imposées pour une infraction criminelle.
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[…]
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[…]
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11. A Canadian offender transferred to Canada shall,
at the date of the transfer, be credited with any time toward completion of a
sentence imposed by a court of a foreign state that, at that date, had
actually been spent in confinement in the foreign state or that was credited,
by the foreign state, towards completion of the sentence.
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11. Il est
tenu compte pour le délinquant canadien transféré au Canada, au jour du
transfèrement, du temps véritablement passé en détention et des remises de
peine que lui a accordées l'État étranger dont un tribunal l'a condamné.
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11.1 (1) Where a Canadian offender transferred to Canada is
detained in a penitentiary, the offender is entitled to be released on
statutory release on the day on which the offender has served the portion of
the sentence that remains to be served after deducting the portion of the
sentence with which the offender was credited in accordance with section 11:
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11.1 (1) Si
le délinquant canadien transféré au Canada est détenu dans un pénitencier, la
date de sa libération d'office est celle à laquelle il a purgé la partie de
la peine qu'il lui reste à purger conformément à l'article 11, moins :
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(a) any credits,
given by the foreign state, towards release before the expiration of the sentence;
and
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a) d'une part, toute réduction de peine
que lui a accordée l'État étranger
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(b) one third of
the portion of the sentence that remains to be served after deducting the
portion referred to in paragraph (a).
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b) d'autre part, le tiers de la partie
de la peine qu'il lui reste à purger, une fois déduite toute réduction de
peine visée à l'alinéa a).
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[…]
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[…]
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12. Subject to sections 11 and 11.1, a Canadian
offender transferred to Canada is subject to the Corrections and
Conditional Release Act […] as if the offender had been convicted and the
sentence imposed by a court in Canada.
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12. Sous
réserve des articles 11 et 11.1, le délinquant canadien transféré au Canada
est assujetti à la Loi sur le système correctionnel et la mise en liberté
sous condition […] comme s'il avait été condamné au Canada et si la peine
lui y avait été infligée.
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[3]
On
July 23, 2003, Mr. Jolivet was transferred to Canada. Immediately
before his transfer he was serving an indeterminate term of imprisonment in Utah as the
result of being convicted on April 16, 1985 of a number of serious offences including
aggravated kidnapping, sexual assault, rape and robbery. Those sentences were
imposed under Utah state law.
[4]
On
December 5, 1994, Mr. Jolivet was convicted in the United States on a charge
of attempting to escape from custody in Utah. That was a
federal offence for which Mr. Jolivet was sentenced to a term of imprisonment of
36 months consecutive to the state sentence.
[5]
On
January 5, 1995, Mr. Jolivet was convicted of influencing and retaliating
against a federal official and mailing threatening communications, which are
also federal offences. Mr. Jolivet was sentenced to a term of 41 months
consecutive to the previous sentences.
[6]
When
Mr. Jolivet was first arrested in Utah in December of 1984, he
was unlawfully at large, having escaped on November 11, 1984 from a Canadian penitentiary.
For the purposes of this appeal, nothing turns on the Canadian offences or his
1984 escape.
[7]
Mr.
Jolivet applied for a transfer to Canada under the Transfer of
Offenders Act. He was told at that time that his indeterminate state sentence
would be treated as a life sentence, meaning that he would have no statutory
release date but he would have a parole eligibility date. In addition, as Canada does not
recognize sentences that are concurrent to a life sentence, his federal
sentences would not be relevant to the determination of his parole eligibility
date. On that basis, Mr. Jolivet would have been eligible immediately after his
transfer to apply for full parole, and the National Parole Board would have
determined whether or not to grant it.
[8]
After
Mr. Jolivet was transferred to Canada on July 23, 2003, his state sentence was
changed to a definite term of 25 years, with an expiry date of February 12,
2009. The record does not explain why the change was made, but it is clear that
Utah state law
permits the Utah State Board of Pardons to make such a change.
[9]
Once
the CSC was advised of the change to Mr. Jolivet’s state sentence, the CSC was
obliged to determine a statutory release date. In making that determination,
the CSC treated Mr. Jolivet’s sentence as having begun on the date of his
transfer to Canada, and also treated the federal sentences as consecutive to
the revised sentence for the Utah state conviction. After giving credit for
time served in the United States and “jail credit” earned in Utah, Mr.
Jolivet’s statutory release date was determined to be April 20, 2011.
[10]
Mr.
Jolivet argues that his statutory release date should be earlier than April 20,
2011. First, he argues that for the purposes of determining his statutory
release date, his sentence should be treated as beginning on the date of his incarceration
in Utah, not on the date of his transfer to Canada. The Federal
Court Judge did not accept that argument. In my view, he was correct to reject
it. That argument cannot succeed in the face of the decision of this Court in Charron
v. Canada (Attorney
General),
2005 FCA 442.
[11]
Second,
Mr. Jolivet argues that the sentences imposed upon his conviction for the federal
offences should have been treated as though they ran concurrently with the
revised state sentence, rather than consecutively. The Federal Court Judge rejected
that argument because the CSC was bound by the federal warrants of committal. I
agree with the Federal Court Judge on that point.
[12]
Mr.
Jolivet cites a letter dated March 27, 2001 from Judge Greene of the United
States District Court, who appears to have been the judge who imposed one of
the federal sentences. Judge Greene says in that letter:
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I do reiterate and
maintain the position as stated in the Sentencing Transcript recommending
that when your federal sentence imposed by this Court commences, you be
released to the custody of Canadian authorities to facilitate extradition and
that service of the federal sentence should run concurrently with any
sentences to be imposed by that appropriate Canadian court.
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[13]
Mr.
Jolivet argues that this letter indicates that once the Utah state
sentence was made determinate, his federal sentences should have become
concurrent rather than consecutive. I do not interpret Judge Greene’s comments
that way. It seems to me that Judge Greene is contemplating a process of
extradition from Utah to Canada, followed potentially
by a hearing by a Canadian court on a new charge. The record does not indicate
whether extradition proceedings were ever in the contemplation of Canadian
authorities.
[14]
In
any case, even if Judge Greene was intending to suggest that the federal
sentences imposed on Mr. Jolivet should be treated as being concurrent rather
than consecutive, there is no evidence that any such change was actually made
in the record of conviction and sentence. In my view, CSC was bound by the
terms of the warrants of committal, which stated that the federal sentences
would be consecutive to the Utah state sentence. No state or federal
authority in the United States has taken any steps to change the federal
sentences from consecutive to concurrent. While that had no practical effect as
long as the Utah state sentence was treated for Canadian purposes as a life
sentence, it had a practical effect once the Utah state
sentence was changed to a determinate one.
[15]
Mr.
Jolivet also argues that the transfer was invalid without his consent, and he
would not have given his consent if he had known in advance how his statutory
release date would be determined if his Utah state sentence was changed from
indeterminate to determinate. It is regrettable that Mr. Jolivet was unaware of
that, but at the same time it is undoubtedly true that the consent he gave was
based on information that was correct at the time. There is no evidence that
the Canadian authorities knew that the Utah state
sentence might be changed after the transfer.
[16]
Mr.
Jolivet also argued orally that the CSC’s determination of his statutory
release date deprives him of approximately 300 days of federal credits to which
he would have been entitled had he not been transferred. The record discloses
no information at all about that point, which was not put to the Federal Court
Judge. Mr. Jolivet says that was because he only learned of this recently. As I
have no basis for determining whether this point has merit, I am unable to
conclude that it justifies reversing the decision under appeal.
[17]
In
the course of argument, counsel for the Crown admitted that there may be a discrepancy
in the calculation of the statutory release date. It appears on the second last
line of the first page of the sentence calculation prepared by Gilles Broué on
July 14, 2005 (Exhibit G to the Affidavit of Gilles Broué sworn August 26, 2005).
[18]
That
document indicates that there are 10,915 days (29 years 10 months 17 days) in Mr.
Jolivet’s sentence, taking into account the revised Utah term and the
two consecutive federal sentences. That is, there should be 10,915 days from April
16, 1985 (the beginning of Mr. Jolivet’s incarceration in Utah) to March 4,
2015 (the last day of his sentence after taking “jail credit” from Utah into account).
However, in the second last line of the page referred to above, 10,915 days is said
to be the number of days from April 16, 1985 to July 12, 2015 (“2015/07/12”).
By my calculation, there are in fact 10,915 days from April 16, 1985 to March
4, 2015. I conclude that the “2015/07/12” in the second last line is a
typographical error that does not affect the accuracy of the determination of
Mr. Jolivet’s statutory release date.
[19]
I
would dismiss this appeal with costs.
“K.
Sharlow”
“I
agree
Gilles
Létourneau J.A.”
“I
agree
John
M. Evans J.A.”
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