Date:
20041105
Docket:
T-255-04
Citation:
2004 FC 1487
BETWEEN:
ALAIN
CHARRON
Applicant
-
and -
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PINARD J.
[1] This
application for judicial review is from a decision by the National Advisor,
Sentence Management, to treat the date of June 28, 2001 as that of the
beginning of the applicant’s sentence and apply sections 11 and 11.1 of
the Transfer of Offenders Act, R.S.C. 1985, c. T‑15, to
determining the latter’s statutory release.
[2] In 1990
the applicant was charged in Canada with committing the criminal offence
mentioned in paragraph 465(1)(c) of the Criminal Code and
subsections 4(1) and (2) of the Narcotic Control Act. The
applicant went to the Bahamas in February 1996 with the permission of the
Canadian authorities, but was arrested by Bahamian police officers on
February 17, 1996 pursuant to an extradition application by the U.S.
authorities. From that date onward, until he was extradited to the U.S. on
July 18, 2000, the applicant remained in custody in the Bahamas.
[3] On
March 19, 2001 the applicant pleaded guilty before Justice Richard J.
Arcara of the United States District Court for the Western District of New York
to charges under sections 843b and 846 of Title 21 of the United
States Code and section 2 of the Title 18 of the United States
Code, all relating to “controlled substance felonies”. On June 28,
2001 Justice Arcara imposed two consecutive terms of 48 months on the
applicant, expiring eight years after the date the applicant was
imprisoned in the Bahamas.
[4] On June
19, 2002 the applicant was transferred to Canada pursuant to the Treaty
Between Canada and the United States of America on the Execution of Penal
Sentences.
[5] The Transfer
of Offenders Act (the Act) applied to the applicant when he was transferred
from the U.S. to Canada in June 2002 in respect of the eight-year term to which
he had been sentenced. The date that term expired was March 11, 2003 and
the statutory release date was December 13, 2002: that is not in dispute.
[6] On
December 5, 2002 the applicant pleaded guilty before Judge Claude Parent,
a judge of the Court of Quebec sitting in the district of Joliette, to the 1990
charges under the Criminal Code. On March 6, 2003 the applicant
was sentenced by Judge Parent to serve two concurrent five-year terms and
to pay a fine of $75,000 on each count, or alternatively consecutive terms of
one year. It accordingly appeared that this sentence was imposed five days
before the eight-year sentence imposed in the U.S. expired.
[7] On May
29, 2003 the applicant received from Correctional Service Canada (CSC) a
document confirming that the date of his eligibility for statutory release was
April 10, 2006.
[8] On
December 5, 2003 the applicant made a request to Suzanne Godin of Sentence
Management at the Leclerc Institution to determine under what provision of the
Act the Transfer of Offenders Act applied to this new overall sentence.
In her reply, Pauline Mailhot referred the applicant to section 8 of the Transfer
of Offenders Act.
[9] On
December 22, 2003 the applicant, through his counsel, sent a letter to the
National Advisor, Sentence Management, submitting that the Transfer of
Offenders Act did not apply to his new overall sentence, that his term
began on February 16, 1996 and the date of his statutory release was
February 28, 2004.
[10] On
January 8, 2004 Michel Laprade, representing the National Advisor, Sentence
Management, CSC, sent counsel for the applicant a letter in which he repeated
that sections 11 and 11.1 of the Transfer of Offenders Act applied
to the applicant and that the date of his statutory release had to be
determined accordingly: hence the application for judicial review at bar.
*
* * * * * * * * * * *
[11] The relevant
provisions of the Act are the following:
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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 less
(a) any credits, given by the foreign state,
towards release before the expiration of the sentence; and
(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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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 :
a)
d’une part, toute réduction de peine que lui a accordée l’État étranger;
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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12. Subject to sections 11
and 11.1, a Canadian offender transferred to Canada is subject to the Corrections
and Conditional Release Act or the Prisons and Reformatories Act,
as the case may be, 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 ou à la Loi sur les prisons et les maisons de correction,
selon le cas, comme s’il avait été condamné au Canada et si la peine lui y
avait été infligée.
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[12] The
relevant provisions of the Corrections and Conditional Release Act, S.C.
1992, c. 20, read as follows:
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127.
(1) Subject to any provision of this Act, an offender sentenced, committed or
transferred to penitentiary is entitled to be released on the date determined
in accordance with this section and to remain at large until the expiration
of the sentence according to law. . . . . .
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127.
(1) Sous réserve des autres dispositions de la présente loi, l’individu
condamné ou transféré au pénitencier a le droit d’être mis en liberté à la
date fixée conformément au présent article et de le demeurer jusqu’à
l’expiration légale de sa peine.
.
. . . .
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(3)
Subject to this section, the statutory release date of an offender sentenced
on or after November 1, 1992 to imprisonment for one or more
offences is the day on which the offender completes two thirds of the
sentence.
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(3)
La date de libération d’office d’un individu condamné à une peine
d’emprisonnement le 1er novembre 1992 ou par la suite est, sous
réserve des autres dispositions du présent article, celle où il a purgé les
deux tiers de sa peine.
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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.
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139.
(1) L’individu assujetti à une peine d’emprisonnement non encore expirée et
qui est condamné à une peine d’emprisonnement supplémentaire est, pour
l’application du Code criminel, de la Loi sur les prisons et les
maisons de correction et de la présente loi, réputé n’avoir été condamné
qu’à une seule peine commençant le jour du début de l’exécution de la
première et se terminant à l’expiration de la dernière à purger.
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(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.
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(2)
Le présent article n’a pas pour effet de modifier la date fixée par le
paragraphe 719(1) du Code criminel pour le début de l’exécution
de chacune des peines qui, aux termes du présent article, sont réputées n’en
constituer qu’une.
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[13] The
relevant provision of the Criminal Code, R.S.C. 1985, c. C‑46,
reads as follows:
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719. (1) A sentence commences when it is
imposed, except where a relevant enactment otherwise provides.
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719. (1) La peine commence au moment où elle
est infligée, sauf lorsque le texte législatif applicable y pourvoit de façon
différente.
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(2) Any time during which a convicted person is
unlawfully at large or is lawfully at large on interim release granted
pursuant to any provision of this Act does not count as part of any term of
imprisonment imposed on the person.
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(2) Les périodes durant lesquelles une personne
déclarée coupable est illégalement en liberté ou est légalement en liberté à
la suite d’une mise en liberté provisoire accordée en vertu de la présente
loi ne sont pas prises en compte dans le calcul de la période
d’emprisonnement infligée à cette personne.
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(3) In determining the sentence to be imposed on a
person convicted of an offence, a court may take into account any time spent
in custody by the person as a result of the offence.
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(3) Pour fixer la peine à infliger à une personne
déclarée coupable d’une infraction, le tribunal peut prendre en compte toute
période que la personne a passée sous garde par suite de l’infraction.
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[14] In my
opinion, the application of section 11 of the Act in the present
circumstances causes no problem. There is nothing in that provision to prevent
its being applied on the day the applicant was transferred to Canada, so that
under section 12 of the Act the application of section 11 must take
precedence over that of the Corrections and Conditional Release Act.
The sentence reductions and remissions set out in section 11 came into
effect at the time of the international transfer and cannot be withdrawn when
the inmate is subject to an additional sentence after his return to Canada (see
R. v. Bodenstein, [1998] O.J. No. 982 (QL), affirmed by the Ontario
Court of Appeal (133 C.C.C. (3d) 127)). Accordingly, the date of expiry of the
sentence imposed in the U.S. continues to be March 11, 2003.
[15] However,
I cannot accept the respondent’s argument that subsection 11.1(1) of the
Act, the purpose of which is to determine the date of the statutory release of
a Canadian offender transferred to Canada and held in a penitentiary, applies
to the case at bar, any more than I can accept the applicant’s argument that
the “beginning of the first of those sentences” mentioned in
subsection 139(1) of the Corrections and Conditional Release Act is
the date on which his imprisonment in the Bahamas began rather than that on
which his sentence was imposed in the U.S.
[16] It is
apparent simply from reading subsection 11.1(1) of the Act, in both its
French and English versions, that the provision only applies to “the” sentence
mentioned in section 11, which is the sentence imposed by a court of the
foreign state, to the exclusion of any other sentence.
[17] As in
the case at bar a new sentence was imposed on the applicant in Canada after his
transfer, before the expiry of the term imposed on him in the U.S., the date of
his statutory release can no longer be determined in accordance with subsection 11.1(1),
and pursuant to section 12 of the Act it is the Corrections and
Conditional Release Act, which must be applied. The effect of applying
subsection 139(1) of the latter Act is that, for the purposes inter
alia of the Criminal Code and the Corrections and Conditional
Release Act the applicant is deemed to have been sentenced to only one term
“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”.
[18] Subsection 719(1)
of the Criminal Code indicates that a sentence commences when it is
imposed, except where a relevant enactment otherwise provides, an exception
which is not applicable in the case at bar. However, subsection 719(3)
allows a court to take into account any time spent in custody by a convicted
person as a result of the offence. To a certain extent this is also the case
in the U.S., where the Federal Bureau of Prisons clearly states in its Sentence
Computation Manual that “in no case can a federal sentence of imprisonment
commence earlier than the date on which it is imposed”. Section 3585b of
the United States Code also provides that “a defendant shall be given
credit toward the service of a term of imprisonment for any time he has spent
in official detention prior to the date the sentence
commences . . .”.
[19] Accordingly,
pursuant to subsection 139(1) of the Corrections and Conditional
Release Act, and taking into account both the Canadian Criminal Code
and the United States Code, the applicant in the case at bar is deemed
to have served only one term commencing at the beginning of the first of the
sentences, namely June 28, 2001, when the first sentence was imposed on
him in the U.S., and in view of the application of section 11 of the Act in
the applicant’s favour, ending on the expiration of the last sentence to be
served, namely on or about March 5, 2008 (it will be for the sentence
managers to make this determination specifically).
[20] The date
of the applicant’s statutory release must be determined by applying
subsection 127(3) of the Corrections and Conditional Release Act,
and is the date on which the applicant will have served two-thirds of his term,
considered as a single term under subsection 139(1) of the Corrections
and Conditional Release Act.
[21] Consequently,
the Court finds that the date of the applicant’s statutory release is the date
on which he will have served two-thirds of his sentence beginning on
June 28, 2001, the date of the imposition of his first sentence in the
U.S., and ending on or about March 5, 2008, at the expiry of his second
sentence.
[22] In the
circumstances, no costs will be awarded.
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YVON
PINARD
JUDGE
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OTTAWA, ONTARIO
November 5, 2004
Certified true
translation
Jacques Deschênes,
LLB
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKET: T-255-04
STYLE OF CAUSE: ALAIN
CHARRON v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: October
6, 2004
REASONS FOR ORDER BY: Pinard
J.
DATED: November
5, 2004
APPEARANCES:
Josée Ferrari FOR
THE APPLICANT
Éric Lafrenière FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Josée Ferrari FOR
THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR
THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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