BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA and
THE COMMISSIONER OF CORRECTIONS
Heard by videoconference at Vancouver and Agassiz, British Columbia, on May 2, 2007.
Judgment delivered at Ottawa, Ontario, on May 11, 2007.
REASONS FOR JUDGMENT BY: SHARLOW J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
EVANS J.A.
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
[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. |
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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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. |
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: |
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 |
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). |
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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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. |
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. |
[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. |
[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.
J.A.
“I agree
Gilles Létourneau J.A.”
“I agree
John M. Evans J.A.”
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-344-06
STYLE OF CAUSE: DAVID R. JOLIVET v.
THE ATTORNEY GENERAL OF CANADA and THE COMMISSIONER OF CORRECTIONS
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: May 2, 2007
REASONS FOR JUDGMENT BY: Sharlow J.A.
CONCURRED IN BY: Létourneau J.A.
Evans J.A.
DATED: May 11, 2007
APPEARANCES:
David R. Jolivet ON HIS OWN BEHALF
Susanne Pereira FOR THE RESPONDENTS
SOLICITORS OF RECORD:
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John H. Sims, Q.C. Deputy Attorney General of Canada |
FOR THE RESPONDENTS |