Date: 20051223
Docket: A-643-04
Citation: 2005 FCA 442
CORAM: RICHARD C.J.
DÉCARY J.A.
NADON J.A.
BETWEEN:
ALAIN CHARRON
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1] This is an appeal and cross-appeal from a decision by Pinard J. of the Federal Court on November 5, 2004, which allowed, in part, an application for judicial review filed by the appellant, Alain Charron, to cancel the calculation made by the Correctional Service of Canada (the "CSC") of his date of eligibility for statutory release.
[2] The main issue before us relates to determining the method of calculation of the date of eligibility for statutory release of a Canadian citizen, convicted in the United States for a crime and having served a portion of his sentence in the United States who, subsequently, was transferred to Canada to serve the remainder of his American sentence and who, after his transfer to Canada, received an additional sentence imposed by a Canadian court.
[3] The appeals raise the issue of the interpretation of certain provisions of the Transfer of Offenders Act, R.S.C. (1985), c. T-15 ("Transfer Act") and of the Corrections and Conditional Release Act, R.S.C. (1992), c. 20 ("Corrections Act"). I will therefore begin by reproducing the relevant provisions of these Acts:
| TRANSFER OF OFFENDERS ACT
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LOI SUR LE TRANSFÈREMENT
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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 less
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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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| (2) Where a Canadian offender transferred to Canada is detained in a prison, the offender is entitled to be released on the day on which the offender has served the portion of the sentence that remains to be served after deducting the portion with which the offender was credited in accordance with section 11 less
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(2) Si le délinquant canadien transféré au Canada est détenu dans une prison, 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;
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a) d'une part, toute réduction de peine que lui a accordée l'État étranger;
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| (b) the amount of any remission granted, pursuant to the Prisons and Reformatories Act, on 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, la réduction de peine méritée sur 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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| CORRECTIONS AND CONDITIONAL RELEASE ACT
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LOI SUR LE SYSTÈME CORRECTIONNEL
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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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| . . . . .
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[...]
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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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| . . . . .
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[...]
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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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[4] Section 719 of the Criminal Code, R.S.C. 1985, c. C-46, is also relevant and I reproduce it:
| 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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| (4) Notwithstanding subsection (1), a term of imprisonment, whether imposed by a trial court or the court appealed to, commences or shall be deemed to be resumed, as the case may be, on the day on which the convicted person is arrested and taken into custody under the sentence.
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(4) Malgré le paragraphe (1), une période d'emprisonnement, infligée par un tribunal de première instance ou par le tribunal saisi d'un appel, commence à courir ou est censée reprise, selon le cas, à la date où la personne déclarée coupable est arrêtée et mise sous garde aux termes de la sentence.
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| (5) Notwithstanding subsection (1), where the sentence that is imposed is a fine with a term of imprisonment in default of payment, no time prior to the day of execution of the warrant of committal counts as part of the term of imprisonment.
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(5) Malgré le paragraphe (1), lorsque la peine infligée est une amende avec un emprisonnement à défaut de paiement, aucune période antérieure à la date de l'exécution du mandat d'incarcération ne compte comme partie de la période d'emprisonnement.
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| (6) An application for leave to appeal is an appeal for the purposes of this section.
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(6) Une demande d'autorisation d'appel constitue un appel pour l'application du présent article.
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[5] In order to properly grasp the issue before us, a brief summary of the facts is necessary.
[6] The appellant, a Canadian citizen, was arrested on February 17, 1996, in the Bahamas, pursuant to an extradition application by American authorities.
[7] On July18, 2000, he was extradited to the United States and on June 26, 2001, he was convicted by the US District Court for the Western District of New York and received two consecutive prison sentences of 48 months.
[8] On June 19, 2002, the appellant was transferred to Canada to serve the remainder of his American sentence, under the Treaty Between Canada and the United States of America on the Execution of Penal Sentences.
[9] Upon the appellant's arrival in Canada, the CSC, in accordance with sections 11 and 11.1 of the Transfer Act, calculated his date of eligibility for statutory release, as well as the date of the end of his prison term. Based on this calculation, the appellant became eligible for statutory release on December 13, 2002, and the date of the end of his term was set at March 11, 2003.
[10] On March 6, 2003, five days before the end of his term, the appellant was convicted in Canada and sentenced, inter alia, to two concurrent five-year prison terms.
[11] The CSC then made a new calculation of the appellant's sentence. According to this calculation, made in accordance with sections 11 and 11.1 of the Transfer Act and subsection 139(1) of the Corrections Act, his date of eligibility for statutory release was postponed to
April 10, 2006, while the date of the end of his term was set at March 5, 2008.
[12] By way of an application for judicial review filed with the Federal Court, the appellant contested the CSC's new calculation. In support of his application, the appellant advanced two arguments. Firstly, he claimed that the calculation of his date of eligibility for statutory release was to be made, not under the Transfer Act, but rather under subsection 127(3) of the Corrections Act. Secondly, he claimed that in order to calculate his date of eligibility for conditional release, under subsection 127(3) of the Corrections Act, the date of his arrest in the Bahamas, namely
February 17, 1996, should be taken as the starting point.
[13] On November 5, 2004, Pinard J. allowed, in part, his application for judicial review. The judge said he agreed with the appellant's first argument, but dismissed the second. According to the judge, the calculation of his date of eligibility for statutory release should be made under subsection 127(3) of the Corrections Act and the starting point for this calculation was the date of imposition of the American sentence, namely June 28, 2001.
[14] The appeal and cross-appeal are the result of that decision. The appellant holds that the judge erred in concluding that the calculation of his date of eligibility was to be made starting at June 28, 2001, while the respondent holds that the judge erred in concluding that the calculation was to be made under subsection 127(3) of the Corrections Act and not under the Transfer Act, specifically under section 11.1 of this Act.
[15] I will first deal with the question raised by the respondent's cross-appeal, since a decision in the respondent's favour on his appeal would make the appellant's appeal a moot point.
[16] For the reasons which follow, I am of the view that Pinard J. erred in concluding that the appellant's date of eligibility for statutory release was to be calculated on the basis of subsection 127(3) of the Corrections Act, rather than on the basis of section 11.1 of the Transfer Act.
[17] A brief overview of the Transfer Act and of the Corrections Act will assist us in better understanding the point in issue.
[18] Section 4 of the Transfer Act establishes a presumption according to which, in the event an inmate is transferred from the United States to Canada, the sentence imposed in the United States becomes a Canadian sentence. Moreover, section 12 of this Act provides that the inmate transferred to Canada, subject to sections 11 and 11.1, is subject to, inter alia, the Corrections Act as if he had been convicted and as if the sentence he received had been imposed by a court in Canada.
[19] Also, section 11.1 of the Act, contrary to the rules applicable to an inmate convicted in Canada, provides that the date of statutory release of an inmate convicted in the United States, will not be the date where he will have served two-thirds of his sentence (subsection 127(3) of the Corrections Act), but rather the date corresponding to two-thirds of the time to be served between the date of transfer, that is the inmate's arrival in Canada, and the date of the end of his term, once the sentence remissions and reductions (sections 11 and 11.1) granted by the foreign state have been deducted.
[20] Subsection 127(3) of the Corrections Act provides that an inmate will be statutorily released after having served two-thirds of his sentence. As for subsection 139(1) of this Act, it states the principle of merging of sentences, i.e. when an individual serving a prison sentence receives an additional sentence, he is deemed, for purposes of the Corrections Act, to have been sentenced to one sentence, which begins at the beginning of the first sentence to be served and ends at the expiration of the second.
[21] Therefore, under section 11.1 of the Transfer Act, the starting point for the calculation of the date of eligibility for statutory release of a Canadian inmate, sentenced in the United States and transferred to Canada, is the date of his arrival in Canada, while under the scheme of subsection 127(3) of the Corrections Act, this calculation is made starting at the date of the commencement of the sentence imposed on the inmate convicted in Canada.
[22] Pinard J. concluded that the exception provided for in section 11.1 of the Transfer Act no longer applied when an inmate received a new sentence in Canada before the expiry of the one which he had received in the United States. Consequently, according to section 12 of the Transfer Act, which subjects the Canadian inmate transferred to Canada to the Corrections Act, the calculation of the date for the appellant's conditional release was to be made on the basis of subsection 127(3) of the Corrections Act. On that basis, since, according to subsection 139(1) of the Corrections Act, the appellant was deemed to have received only 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", the calculation of the date of the appellant's statutory release, under subsection 127(3) of the Corrections Act, should be made using as the starting point June 28, 2001, which is the date that the American sentence was imposed.
[23] In so concluding, the judge also relied on subsection 719(1) of the Criminal Code which provides that a sentence commences when it is imposed. Here is how, at paragraphs 16, 17, 19 and 20 of his decision, Pinard J. settled this question:
[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".
. . . . .
[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.
[24] In my opinion, the judge's conclusion is the result of an incorrect interpretation of sections 11.1 and 12 of the Transfer Act and of subsection 139(1) of the Corrections Act. Since the date of eligibility for statutory release of a Canadian inmate convicted in the United States and transferred to Canada has as its starting point the date of his arrival in Canada, the imposition of an additional sentence in Canada cannot, in my opinion, have the effect of changing this date. I will explain.
[25] I will start with section 11.1 of the Transfer Act, which constitutes an exception for the calculation of the date of eligibility of an inmate for statutory release. Indeed, according to this provision, the calculation of the date of eligibility for conditional release of a Canadian inmate, convicted in the United States and transferred to Canada before the expiry of his sentence, will correspond not to two-thirds of his sentence, as provided for in subsection 127(3) of the Corrections Act, but will correspond rather to two-thirds of the time remaining to be served between the date of his arrival in Canada and the date of the end of his term, calculated in accordance with sections 11 and 11.1 of this Act.
[26] Because of this exception to the rule provided by subsection 127(3) of the Corrections Act, the statutory release date of a Canadian inmate transferred to Canada will always be later than his transfer. Without this exception, such an inmate who, for example, would have served more than two-thirds of his American sentence before being transferred to Canada, would automatically be released upon his arrival in Canada, if he were subject to subsection 127(3) of the Corrections Act.
[27] The respondent claims, and I agree entirely with that claim, that the principle of merging of sentences provided for in subsection 139(1) of the Corrections Act is not a deciding factor for the method of calculation of the date of eligibility for statutory release of an inmate and that, consequently, the principle of merging of sentences in no way creates a new starting point for the calculation of the date of eligibility for statutory release.
[28] It is worth recalling that pursuant to section 4 of the Transfer Act, the American sentence is managed as if it had been imposed by a Canadian court. Notwithstanding this presumption that the sentence is deemed to be a Canadian sentence, it is nonetheless, on the basis of section 12 of the Transfer Act, subject to sections 11 and 11.1 of this Act for the calculation of the date of eligibility for statutory release.
[29] Since at the time that the appellant received a second sentence in Canada, the American sentence had not expired, the latter remains, in my opinion, for purposes of calculation of the statutory release, subject to sections 11 and 11.1. The additional sentence is thus combined with the first sentence to continue to constitute a single sentence, and for which the starting point for the calculation of the date of eligibility for statutory release is the date of the inmate's arrival in Canada.
[30] Consequently, for the purposes of calculating the date of eligibility for statutory release, subsection 139(1) of the Corrections Act must be read in conjunction with section 11.1 of the Transfer Act. In my view, that is what section 12 provides for when it subjects the inmate to the Corrections Act, subject to sections 11 and 11.1 of the Transfer Act. As a result, the starting point of the calculation, as regards the first sentence, is the date of the inmate's arrival in Canada and, consequently, upon the merging of the sentences within the meaning of subsection 139(1) of the Corrections Act, this date must constitute the starting point of the calculation of the statutory release and not the date of the imposition of the sentence in the United States.
[31] This interpretation of these provisions of the Transfer Act and of the Corrections Act is the only one which, in my view, results in meeting the objectives of the Corrections Act, which aims at the rehabilitation of offenders and their reintegration in society as law-abiding citizens, while upholding the protection of society (see sections 3, 4, 100 and 101 of the Corrections Act).
[32] According to the respondent, the interpretation suggested by Pinard J. has the effect of inciting an inmate, transferred to Canada to serve a sentence imposed in the United States, to reoffend rather than to behave as a law-abiding citizen. Indeed, the imposition of an additional sentence in Canada, even if its effect was to postpone the date of the end of the prison term, could have the effect of advancing the date of eligibility for statutory release. In certain cases, the imposition of an additional sentence could lead to a statutory release date prior to the imposition of the new sentence and even prior to the inmate's transfer from the United States to Canada. At paragraph 49 of his memorandum of fact and law (page 13), the respondent gives the following example in support of his comments:
[translation]
49. ...
Example:
The offender receives a nine-year sentence on January 2, 2000, in the United States (the date of the end of his term is therefore set at January 1, 2009).
The inmate is transferred to Canada on February 2, 2006.
Within the meaning of sections 11 and 11.1 (assuming no credit for good behaviour and the time served between the date of imposition and the date of transfer), a statutory release date for this sentence would be set at January 10, 2008 (2/3 of the time remaining to be served between February 2, 2006, and
January 1, 2009).
On January 3, 2008, he receives an additional sentence of one year concurrent (the date of the end of the tern is then set at January 2, 2009).
Applying subsection 127(3) of the CCRA to calculate the statutory release date following the imposition of the additional sentence, we would take as starting point the date of imposition of the first sentence, January 2, 2000, and set the date at 2/3 of the time between this date and the new date of end of term, January 2, 2009, which would give a statutory release date of January 2, 2006, thus prior to the offender's transfer to Canada.
[33] In my opinion, the respondent's claim is sound. With respect, the interpretation arrived at by the judge leads to an absurd result. At paragraph 27 (page 43) of his reasons in Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, Iacobucci J. of the Supreme Court of Canada, on the basis of comments of Professor Côté, defined an absurd interpretation as follows:
...It is a well-established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté, supra, an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80) Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra.,at p. 88).
[34] There is no doubt, in my view, that the interpretation suggested by Pinard J. leads to unreasonable consequences. I have little hesitation in concluding that the calculation of the date of the appellant's eligibility for statutory release must use as its starting point the date of his arrival in Canada, namely June 19, 2002.
[35] As I indicated earlier in my reasons, a decision in the respondent's favour on his appeal makes the appellant's appeal a moot point. Consequently, I would dismiss the appellant's appeal with costs, I would allow the respondent's cross-appeal with costs, I would set aside the trial judge's decision and, delivering the decision that should have been delivered, I dismiss the appellant's application for judicial review in Docket T-255-04 with costs.
"M. Nadon"
"I concur.
J. Richard C.J."
"I concur.
Robert Décary J.A."
Certified true translation
Monica F. Chamberlain
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