Date: 20070704
Docket: T-1570-06
Citation: 2007 FC 693
Ottawa, Ontario, July 4, 2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
JOHN
CHAIF
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant, Mr. Chaif, was convicted on May
28, 1983 of the first degree murder of his spouse and sentenced to life
imprisonment without the possibility of parole for 25 years. Now 52 years old,
the applicant would have ordinarily been eligible for parole as of May 1, 2008.
However, on June 13, 1988, the applicant escaped from custody at the Collins
Bay Institution and remained at large until he was arrested in Tennessee on July 6, 1989. He was
subsequently convicted by the United States District Court for the Western
District of Tennessee of armed bank robbery and sentenced to imprisonment for
168 months.
[2]
On March 22, 1994, while serving his sentence at
the United States Penitentiary at Leavenworth, Kansas, the applicant applied
under the Transfer of Offenders Act, R.S.C. 1985, c. T-15 (the Transfer Act),
to transfer to Canada the remainder of his sentence in the United States. On
July 27, 1995, his transfer application was approved, and the applicant was
transferred to Canada on
September 21, 1995.
[3]
In accordance with subsection 139(1) of the Corrections
and Conditional Release Act, S.C. 1992, c. 20 (the Corrections Act), the
unexpired portion of the applicant’s United States sentence was merged with his previous life sentence in Canada. At the time of his escape in 1988,
the applicant had 7262 days remaining in his sentence before being eligible for
parole. The parties agree that, when the applicant escaped from custody on June
13, 1988, the “sentencing clock” on the applicant’s Canadian sentence stopped
running.
[4]
At issue in this application for judicial review
is when the sentencing clock restarted. According to Correctional Services
Canada (CSC), the sentencing clock resumed only upon the applicant’s transfer
to Canada on September 21,
1995. The applicant’s parole eligibility date, as the Commissioner determined in
the decision under review, is therefore changed from May 1, 2008 to August 9,
2015. The applicant originally argued that he was entitled to credit for the
time he served in custody in the United States or after applying to be
transferred to Canada on March
22, 1994. At the hearing, the applicant conceded that he was not entitled to
credit for the time he served in custody in the United
States or the time served in the United States after
applying to be transferred to Canada. Rather, the applicant submitted that the only issue is whether the
applicant is entitled to credit for the time he served in custody in the United States for the 57 days between the
time his transfer application was approved by CSC and the time he physically
returned to a prison in Canada.
Decision under review
[5]
When the applicant returned to Canada, CSC re-calculated the applicant’s
parole eligibility date from May 1, 2008 to August 9, 2015. The applicant filed
a third level grievance challenging CSC’s calculation of his eligibility date. In
a decision dated August 16, 2006, the Commissioner denied the applicant’s
grievance:
Mr.
Chaif, your third-level grievance which you submitted through your lawyer Mr.
Hill regarding your sentence calculation has been reviewed. Considered in this
response were your OMS files, relevant policy, and legislation. Consultation
occurred with Ms. Millbury from Ontario Sentence Administration, your Parole
Officer Ms. Lazette, Mr. Hill and yourself.
You
indicate that there is a concern with your sentence calculation as a result of
application of the Transfer of Offenders Act. You were serving a life
sentence at Collins Bay Institution when you absconded to the United States and were re-arrested 387 days
later. While in the United States you incurred new convictions adding approximately 168 months to
your sentence.
You
are grieving that the “sentencing clock” stopped for the entire period of time
you were in the United States.
You contend that the “sentencing clock” should have commenced again from the
time you made application to return to Canada and not from your actual return to the country. Mr. Hill notes
prior legal precedent in a similar case to yours, in which the time spent in
foreign custody was not counted towards the sentence. He states that you made
efforts to return to Canada but
were prevented from doing so.
A
review of the information available indicates that your application form 614
was received on 1994-05-06, and was incomplete; however, the processing of your
transfer commenced on that date. A subsequent application form 308 was received
on 1995-06-09 and your transfer was completed on 1995-09-21.
The
Criminal Code of Canada section 719 subsection 2 states:
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.
Commissioner’s
Directive 704 International Transfers paragraph 14(c) states:
Upon receipt of an application
for transfer to Canada, the International Transfer unit will ensure that: the
sentence is one that can be administered under the laws and procedures of
Canada, including the application of any provision for reduction of the term of
confinement by parole, statutory release or otherwise;
CD 704 paragraph 16 states:
The Assistant Deputy Commissioner,
Operations will ensure that sentence calculations requested for international
transfers are provided to the International Transfer Unit within 30 days of
reception of the calculation request.
As was discussed with you during your
interview, the case you presented represents the basis for determining sentence
calculation for offenders who illegally leave the country and are apprehended
and serve a sentence in foreign custody. There is currently no provision in the
law for altering sentence calculation based on your intention to return to Canada. The issue that has been
addressed in the case you referenced clearly identifies that a Canadian
Sentence is to be served in a Canadian Penitentiary. While you raise, other
cases where the “sentencing clock” continues to count while a person serving a
Canadian sentence is in foreign custody, the situations you describe differ
significantly from your case, in that these individuals did not abscond from
the country, but were rather demanded to be present in foreign custody and the
Canadian authorities made them available.
Your grievance is denied.
Issue
[6]
The issue in this application for judicial
review is whether the Commissioner erred in denying the applicant’s third level
grievance by refusing to grant him credit towards his period of parole
ineligibility for the 57 days he spent in custody in the United States after being approved for
transfer to a Canadian prison and physically being transferred.
Relevant Legislation
[7]
The legislation relevant to this application for
judicial review is:
1.
the Transfer of Offenders Act, R.S.C.
1985, c. T-15;
2.
the Corrections and Conditional Release Act,
S.C. 1992, c. 20; and
3.
the Criminal Code, R.S.C. 1985, c. C-46.
Standard of Review
[8]
In determining the appropriate standard of review, the Supreme
Court of Canada held in Dr. Q. v. College of Physicians and Surgeons of
British Columbia, [2003] 1 S.C.R. 226 at paragraph 26 that the Court must
undertake a pragmatic and functional approach:
[...] In the pragmatic and functional approach, the standard of review is determined by
considering four contextual factors -- the presence of a privative clause or statutory right of appeal; the expertise
of the tribunal relative to that of the reviewing court on the issue in
question; the purposes of the legislation and the provision in particular; and,
the nature of the question -- law, fact, or mixed law and fact [...]
As stated by Linden J.A. in Sketchley v.
Canada (Attorney
General),
2005 FCA 404:
¶ 46 …[T]he pragmatic and
functional analysis must be undertaken anew by the reviewing Court with respect
to each decision of an administrative decision-maker, not merely each general
type of decision of a particular decision-maker under a particular provision.
[9]
As I stated in Macdonald v. Canada (Attorney General), 2005 FC 1326 at paragraph 38:
The first factor the Court must consider is the
presence or absence of a privative clause or statutory right of appeal. The Act does not contain a privative
clause insulating the
Commissioner's decisions made pursuant to the grievance process, nor does the
Act provide a route of appeal for the Commissioner's decision. Accordingly,
this factor is neutral.
[10]
The second factor to consider is the expertise
of the decision-maker relative to the Court. It is well established that the Commissioner
has specialized expertise in matters related to prison administration: see,
e.g., Tehrankari v. Canada (Correctional Service), [2000] F.C.J. No. 495, 188 F.T.R. 206, 38 C.R. (5th) 43; MacDonald,
above. With respect to the subject matter of this particular grievance,
however, the Commissioner is not called upon to apply expertise in prison
management. Rather, the decision under review concerns a question of statutory
interpretation in respect of which the Court enjoys relative expertise.
Accordingly, this factor suggests less deference.
[11]
The third factor to consider is the purpose of
the applicable legislation. As I stated in MacDonald, above, at
paragraph 40:
The overall objective of the Act is set out in section 3:
3. The purpose of the federal correction system is to
contribute to the maintenance of the just, peaceful and safe society
a) carrying
out sentences imposed by the Courts through the safe and humane custody and
the supervision of offenders and
(b) assisting the rehabilitation of offenders and
their reintegration into the community as law-abiding citizens through the
provision of programs in penitentiaries and in the community.
The Act recognizes the necessity of the CSC to oversee its
own internal administrative matters, as evidenced by the three-level grievance
procedure set out in sections 90-91 of the Act and sections 72-84 of the
Regulations pursuant to which inmates may seek redress.
[Emphasis added]
The objective of the Corrections Act to carry
out the sentence imposed on the applicant by the Courts is, in the context of
this grievance, satisfied only through the proper interpretation of the extent
of the applicant’s period of parole ineligibility. Insofar as giving effect to
the purpose of the Act engages the Courts’ relative expertise with respect to
issues of statutory interpretation, this factor suggests a less deferential
approach.
[12]
The fourth factor to be addressed is the nature
of the question: whether it is one of law, fact, or mixed law and fact. To the
extent that the issue raised in the grievance involved factual elements, those
facts were not in dispute. What remains is a pure question of law, namely
namely whether the applicant was “unlawfully at large” within the meaning of
subsection 719(2) of the Criminal Code when he was serving his sentence
in the United States. The Court
is well suited to determine issues of statutory interpretation and owes no
deference to the Commissioner’s decision in this regard.
[13]
Having
regard to the four factors, the Commissioner’s decision to deny the applicant’s
grievance on the basis that he is not entitled to credit for time served abroad
should be assessed on the correctness standard.
Analysis
[14]
The computation of the applicant’s sentence is governed
by subsections 719(1) and (2) of the Criminal Code:
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Commencement of sentence
719.
(1) A
sentence commences when it is imposed, except where a relevant enactment
otherwise provides.
Time at large excluded from term of imprisonment
(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.
|
Début de la peine
719. (1) La peine
commence au moment où elle est infligée, sauf lorsque le texte législatif
applicable y pourvoit de façon différente.
Exclusion de certaines périodes
(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.
|
[15]
The respondent argues that the applicant was
“unlawfully at large” from June 13, 1988, when the applicant escaped custody
from Collins Bay Institution, to September 21, 1995, when he was transferred to
Canada from the United States.
[16]
The facts in this case are similar to those
considered by the Federal Court of Appeal in Leschenko v. Canada (Attorney General), [1983] 1 F.C. 625:
1. On December 20, 1975, the appellant escaped from a
Canadian penitentiary where he was serving a term of imprisonment for crimes
committed in Canada. At the time of his escape, he had an unserved balance of imprisonment of
approximately 20 years.
2. On February 18, 1976, the appellant was arrested in
the United
States
and taken into custody. On June 11, 1976, he was sentenced by an American court
to 15 years of imprisonment for crimes committed in the United States.
3. Subsequent to his conviction and sentence in the
United States, the appellant was returned to Canada pursuant to the Transfer of Offenders
Act, S.C. 1977-78, c. 9. He had then spent nearly three years in custody in
the United
States.
4. Following the appellant's return to penitentiary
confinement in Canada, the authorities responsible for the interpretation and
computation of sentences determined that the appellant still had to serve
concurrently the unserved portion, at the time of his escape, of sentences
pronounced against him in Canada (some 20 years) and the unserved portion of
his American sentence (some 12 years). They refused to give credit to the
appellant against the time remaining to be served on his Canadian sentences for
the period of nearly three years that he had spent in custody in the United States.
[17]
In Leschenko, above, Justice Pratte
stated on behalf of a unanimous Court at page 629:
When the appellant was in custody in the United States,
he was illegally outside of the Canadian penitentiary where
he was to serve the sentences
that had been pronounced against
him. At common law, the time during which a prisoner is
unlawfully at large does not count as part of his term of
imprisonment. [Re MacDonald and Deputy Attorney-General of Canada (1981), 59 C.C.C.(2d) 202 (Ont. C.A.); R.
v. Dozois (1981), 61 C.C.C. (2d) 171, 22
C.R. (3d) 213 (Ont. C.A.); R. v. Law (1981), 63
C.C.C. (2d) 412, 24 C.R. (3d) 332 (Ont. C.A.)] This is so,
in my view, even if
part of that time was spent in custody in a foreign state,
since a Canadian sentence to imprisonment must be served in
a
Canadian prison.
[Emphasis added]
[18]
The Federal Court of Appeal in Leschekno,
above, also considered sections 4 and 11 of the Transfer of Offenders Act
and subsection 14(1) of the Parole Act. After reviewing these provisions
as they read at the time of Leschenko’s escape, Justice Pratte rejected at page
631 the appellant’s argument that the period of imprisonment abroad should be
considered time spent in a Canadian institution:
Counsel for the appellant argued, as I
understood him,
that since the sentence pronounced against the appellant in
the United States is deemed by section 4 of the Transfer
of
Offenders Act to be a
sentence of a Canadian court, it
follows that the time during
which the appellant was in confinement
in the United States pursuant to
the sentence of the American
court must be deemed to have been spent in a Canadian penal
institution pursuant to the sentence of a Canadian court. I
do not agree. That submission
was, in my view, correctly
dismissed by the Associate Chief Justice whose judgment on
this point was approved by the Court of Appeal of Ontario in
The Queen v. Dozois [above]. The Transfer of Offenders Act provides that a Canadian
offender may serve in Canada a sentence imposed by a
court of a foreign country;
the purpose of sections 4 and 11 is to determine the time that a Canadian offender who is transferred to Canada
will have to spend in confinement in Canada as a result of
the sentence imposed by the
foreign court. These provisions have no
incidence, in my opinion, on the computation of sentences previously pronounced by Canadian courts.
[Emphasis added]
[19]
Sections 4 and 11 of
the Transfer of Offenders Act, as they read on the date of the
applicant’s transfer, state:
|
Effect of transfer
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. [....]
Remission
11. (1) A Canadian
offender transferred to Canada
(a) shall be credited with any time toward completion of
his sentence that was credited to him at the date of his transfer by the
foreign state in which he was convicted and sentenced; and
(b) is eligible to earn remission as if he had been committed
to custody on the date of his transfer pursuant to a sentence imposed by a
court in Canada.
Forfeiture
(2) Any time referred to in paragraph (1)(a) credited to a
Canadian offender who is subject to the Prisons and Reformatories Act,
except time actually spent in confinement pursuant to the sentence imposed by
the foreign court, is subject to forfeiture for a disciplinary offence as if
it were remission credited under that Act.
|
Conséquence du transfèrement
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. […]
Réduction de peine
11. (1) Un délinquant canadien transféré au Canada :
a) bénéficie des remises de peine que lui
a accordées l’État étranger ou il fut déclaré coupable et condamné calculées
au jour de son transfèrement;
b) peut bénéficier d’une réduction de
peine comme s’il était incarcéré le jour de son transfèrement conformément à
une condamnation prononcée par un tribunal canadien.
Déchéance
(2) Les remises de peines mentionnées à
l’alinéa (1)a) acquises par un délinquant canadien assujetti à la Loi sur
les prisons et les maisons de correction, sauf celles accordées pour le
temps véritablement passe en détention conformément à la sentence que lui a
imposée le tribunal étranger, sont sujettes à déchéance pour une infraction
disciplinaire comme s’il s’agissait de réductions de peine acquises en vertu
de cette loi.
|
[20]
It is well
established in the jurisprudence that no credit is to be given towards an
unexpired sentence in Canada for time served in custody abroad: see, e.g., Leschenko,
above; Dozois, above; Re McClarty (1990), 58 C.C.C. (3d) 211 at
213; Charron v. Canada (Attorney General), 2005 FCA 442 at paragraph 34;
Jolivet v. Canada (Attorney General), 2006 FC 811 at paragraphs 14-16. Moreover,
the credit contemplated in section 11 of the Transfer
of Offenders Act is a credit toward the completion of a U.S. sentence at
the date of transfer from the U.S. to a Canadian prison. The Transfer of
Offenders Act as Justice Pratte stated in Leschenko, above, has no
effect on the computation of the unexpired Canadian sentence.
[21]
For the reasons above, I conclude that the
Commissioner did not err in denying the applicant’s third level grievance by
refusing to grant him credit towards his period of parole ineligibility for the
time he spent in custody in the United States after his application for transfer had been approved. Accordingly,
this application for judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
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