Date: 20100312
Docket: T-1568-09
Citation: 2010 FC 290
Ottawa,
Ontario, March 12, 2010
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
DAVID
R. JOLIVET
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision rendered August 11, 2009, by
Marc-Arthur Hyppolite, Senior Deputy Commissioner for the Correctional Service of Canada
(“CSC”) dismissing the third level grievance of the Applicant with respect to
the calculation of his statutory release date (“SRD”) pursuant to section
11.1(2)(b) of the Transfer of Offenders Act, R.S.C. 2004, c. 21 (“TOA”).
I. The Facts
[2]
On March
20, 1979, the Applicant began serving a Canadian federal penitentiary term of nine
(9) years, nine (9) months pursuant to his conviction for two counts of
robbery.
[3]
On
November 11, 1984, the Applicant escaped from the Matsqui Institution in Abbotsford, British Columbia, while on an authorized
unescorted absence.
[4]
On
December 6, 1984, the Applicant was arrested in the United States and on April
16, 1985, he was sentenced by the Utah
authorities to an indeterminate sentence of life imprisonment for aggravated
kidnapping, sexual assault, rape, aggravated robbery and forcible sodomy. He was
subsequently convicted of two federal offences on December 5, 1994 and January
5, 1995, for which he received additional sentences of 41 and 36 months,
respectively, to be served consecutively to the indeterminate sentence.
[5]
The
Applicant subsequently applied for transfer to Canada to serve the remainder of his sentences.
This was approved and took effect on July 23, 2003. On May 21, 2004, the Utah
Board of Pardons changed the Applicant’s sentence from an indeterminate to a determinate
sentence of 29 years with a warrant expiry on February 12, 2009.
[6]
In order
to determine the amount of time the Applicant would be required to serve in Canada, CSC calculated the total
number of days left to serve on the Applicant’s American sentence. Pursuant to
section 127(3) of the Correctional and Conditional Release Act, S.C.
1992, Chap. 20 (“CCRA”), the Applicant must serve the equivalent of two-thirds
of his American sentence in Canada, which added up to April 20, 2011.
[7]
The
Applicant challenged this calculation of his SRD by commencing five (5) grievances,
the last one being the subject of the present judicial review (V80A00023125). The
Applicant previously commenced a judicial review pursuant to the first
grievance. On June 26, 2006, the Justice Blais of the Federal Court (as he then
was) dismissed the Applicant’s judicial review. The Applicant commenced an
appeal of Justice Blais’ decision, which was dismissed by the Federal Court of
Appeal on May 11, 2007. The Federal Court of Appeal confirmed that CSC
correctly calculated the Applicant’s SRD.
II. Point in Issue
[8]
The
principal issue raised by the Applicant is the fact that he would be entitled
to the maximum amount of earned remission under section 11 of the TOA in order
to calculate his SRD. He also raises the applicability of subsection 127(2)(b)
of the CCRA, an argument that was not part of the fifth grievance, but that was
dealt with as part of the fourth grievance procedure for which no judicial
review of the final decision was sought.
[9]
The
Respondent, the Attorney General of Canada, objects to this judicial review and
submits that the Applicant’s issue in relation to his SRD calculation is res
judicata. As such, the Applicant should be barred from proceeding with this
judicial review and the issue should not be considered by this Court.
[10]
For
the reasons that follow, this Court finds that the application for judicial
review is res judicata as the requirements of issue estoppel are met in
this case. This Court finds that the application for judicial review is
dismissed. Despite the finding of res judicata, the multiplicity of the
proceedings dealing solely with the calculation of the SRD is also commented
upon.
III. Analysis
[11]
The
Applicant has consistently questioned the calculation of his SRD since it was
calculated on July 14, 2005.
[12]
The
Applicant has filed five (5) grievances on the SRD calculation which considers
remission time, if any. He has also sought, without success, judicial review of
the SRD calculation. The Federal Court and the Federal Court of Appeal have
both dismissed his requests.
[13]
Through
his multiplicity of grievances and legal challenges of the calculation of his SRD,
the Applicant relies on different legal arguments to attain his goal, which is
to shorten his sentence. Applicable to all of the grievances is a requirement
to bring the entire case forward. The Applicant cannot bring different parts of
his case at different times since this opens the door to numerous litigious proceedings.
As stated by the Federal Court of Appeal in Rosenstein v Atlantic Engraving
Ltd., 2002 FCA 503, “[a] party must put its best case forward at the first
opportunity” (see at para. 9).
[14]
After
reviewing both the Federal Court and the Federal Court of Appeal judgments
referred to above in relation to the calculation of the SRD and to some extent
remission time, I conclude that the Applicant has already had the issue dealt
with by the Federal Courts. To now state that he had not fully uncovered all of
the issues when the first judicial review was dealt with is not acceptable.
[15]
There
are no new material facts; the calculation of the SRD was known to him then. To
now justify another judicial review on the basis that there may be a new way to
do the SRD calculation including remission time is not acceptable. There are no
special circumstances to justify such an argument. Finally, there are good and
valid facts to argue that the issue is res judicata.
[16]
It
is trite law that when an issue has been decided in a previous proceeding,
estoppel applies. The requirements are as follows: (1) the same question has
been decided; (2) the decision was final; and (3) the parties are the same (see
Angle v. Minister of National revenue [1975] 2 S.C.R. 248 at page 254).
[17]
In Grandview v. Doering, [1976] 2 S.C.R. 621 at page
634, Richie J. quotes a passage from Vice-Chancellor Wigram where he explains
that res judicata applies:
“not only to points upon which the Court
was actually required by the parties to form an opinion and pronounce a
judgment, but to every point which properly belonged to the subject of
litigation, and which the parties, exercising reasonable diligence, might have
brought forward at the time”.
In not bringing the mere
existence of remission to the attention of the trial judge, the Applicant has
missed the opportunity to put his best case forward. The question is therefore
the same as the one previously decided upon, which is the CSC’s determination
of the Applicant’s SRD. I therefore find that the first requirement of issue
estoppel has been met.
[18]
The
two last requirements of issue estoppel are clearly met: the judgment of the
Federal Court of Appeal is final and the present litigation deals with the same
parties.
[19]
Furthermore,
one of the issues dealt with by the Federal Courts was whether CSC erred in
calculating the SRD and the question of federal credits with regard to
remission time. Both Courts dismissed the judicial review.
[20]
This
makes it clear that the present litigation is res judicata.
Multiplicity of
proceedings
[21]
Regardless
of the fact that the present judicial review is res judicata, the
Applicant argues that his SRD should be earlier than April 20, 2011,
because he considers that he is entitled to remission on his Canadian sentence.
He argues that CSC did not take into account that he had served five (5)
years of his nine (9) year sentence, which would have begun in March 1979.
[22]
It
is to be noted that through the fifth grievance leading to the present judicial
review, the Applicant argued entitlement to remission based on section
11.1(2) of the TOA. In his Memorandum of Fact and Law, he relies on section
127(2)(b) of the CCRA.
[23]
The
Applicant cannot, after a final decision on a grievance has been rendered, seek
a judicial review of this decision on a different legal ground. The judicial
review of this decision has to deal with the matters as they were presented
before the decision-maker.
[24]
In
its decision of August 11, 2009, CSC explained that:
• the
Federal Court reviewed the Applicant’s SRD calculation;
• the
Federal Court reviewed the application of the TOA, including ss. 11.1 and 12;
• after
the Court proceedings, CSC reviewed the Applicant’s SRD calculation in
grievance #V80A00015687, which was denied on the basis that the Federal Court
and the Federal Court of Appeal confirmed that CSC accurately calculated the
Applicant’s SRD;
• the
Applicant had already grieved earned remission in grievance #V80A00015687;
• although
the Applicant claims he is raising a new issue with regard to the application
of s. 11.1(2) of the TOA, the Federal Court reviewed the application of the TOA
to his sentence calculation;
• grievance
#V80A00015687 reviewed the SRD calculation and determined that it was done
correctly;
• the
second level grievance decision appropriately denied the grievance since the
issues surrounding his sentence calculation have been fully reviewed at all
levels of redress; and,
• the
second level grievance was rejected in accordance with the Offender
Complaint and Grievance Procedure Manual, which states that a
complaint/grievance can be rejected when the issue has already been responded
to in a previous complaint/grievance.
[25]
As
it appears clearly from that decision, CSC dealt with all the matters brought
up by this fifth grievance and clearly concluded that the SRD calculation had
been dealt with and had been the subject of judicial review by the Federal
Court and by the Federal Court of Appeal. It is noteworthy that both courts
approved the calculation of the SRD and the question of remission time was
referred to (see para. 16 of the Federal Court reasons for judgment and paras.
9, 10, 16 and 18 of the Federal Court of Appeal judgment).
[26]
This
is sufficient to terminate the matter and dismiss the judicial review of the
decision dated August 11, 2009.
IV. Conclusion
[27]
The
August 11, 2009 CSC decision stands. The CSC’s calculation of the Applicant’s
SRD has been previously determined to be April 20, 2011. The Applicant should
have presented his case fully and in any event the application for judicial
review, as it clearly meets the requirements of issue estoppel, is res
judicata.
V. Costs
[28]
The
Applicant has asked not to grant costs against him if such an award could be
granted. He pleaded to the Court that no other procedures would take place
after this judgment, that there would be no appeal, and that therefore no costs
should be granted. On that basis, and in accordance with subsection 400(1) of
the Federal Courts Rules (SOR/98-106), I will not award costs against
the Applicant.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES THAT:
This
application for judicial review is dismissed and no costs are awarded.
“Simon
Noël”
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