Federal Court Decisions

     Date : 19971009

     Docket : T-609-97

BETWEEN:

     RICHARD MARTIN STOVER

     Applicant

     - and -

     THE COMMISSIONER OF CORRECTIONS

     Respondent

     REASONS FOR ORDER

McGILLIS, J.

[1]      Despite the able argument of counsel for the applicant, I have concluded that the application for judicial review must be dismissed on the basis that the Correctional Service of Canada ("Correctional Service") has correctly calculated the date for the applicant's parole eligibility.

[2]      The applicant, a Canadian citizen, was convicted and sentenced in the United States of America on July 18, 1994 to ten years imprisonment for the offence of "conducting a criminal enterprise" based on allegations involving trafficking in narcotics. The presiding judge incorporated in his reasons for sentence a plea agreement entered into between the applicant and the American authorities. The plea agreement specified, among other things, that the applicant was entitled to credit for time served in custody while awaiting disposition of the charges. The plea agreement further specified that the United States would not oppose the applicant's request to serve his sentence in the Canadian prison system. The applicant spent 445 days in custody prior to the imposition of his sentence.

[3]      By letter dated March 15, 1996, the Correctional Service advised the applicant, among other things, that his sentence would be deemed in Canada to be ten years imprisonment less his time served in pre-sentence custody. The letter further indicated that the applicant would be eligible for full parole on December 29, 1997.

[4]      On March 20, 1996, the applicant was transferred to the Millhaven Institution in Canada. Following his subsequent transfer to the Frontenac Institution, the applicant's parole eligibility date was calculated to be December 28, 1997. The calculation prepared by the Frontenac Institution has been deemed by the Correctional Service to be the correct one governing the applicant's sentence and parole eligibility.

[5]      In his affidavit sworn in support of his application for judicial review, the applicant deposed, among other things, as follows:

Based on the plea agreement that I signed with the United States authorities, as well as United States federal law, it was my understanding that I would receive credit for the 445 days against my sentence that I had served in custody prior to being sentenced on July 18, 1994 and that this credit would be applied towards my parole eligibility, as opposed to being taken off at the top of my sentence, as was done by the Correctional Service. As a result I believe that my ... full parole eligibility date was March 7, 1997 (as opposed to December 28, 1997).

[6]      In order to determine whether the Correctional Service has properly calculated the applicant's parole eligibility date, the relevant statutory provisions must be considered.

[7]      By virtue of section 4 of the Transfer of Offenders Act, R.S.C. 1985, c.T-15, as amended ("Act"), the finding of guilt and sentence of an offender transferred to Canada is deemed "...to be a finding of guilt and a sentence imposed by a court of competent jurisdiction in Canada for a criminal offence." Section 8 of the Act provides that a transferred offender is eligible for parole, in accordance with the provisions of the Corrections and Conditional Release Act, S.C. 1992, c.20, on the date at which he "...would have been eligible for parole had [he] been convicted and the sentence imposed by a court in Canada." With respect to the question of pre-sentence custody, section 11 of the Act provides as follows:

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.

[8]      At the time of his transfer to Canada, the applicant had not been credited by the United States with any time spent in custody "towards the completion of his sentence", within the meaning of section 11 of the Act. Accordingly, under the terms of section 11 of the Act, the Correctional Service was required to give the applicant credit for his pre-sentence custody in the United States. Since the sentence imposed in the United States is deemed by section 4 of the Act to be a sentence imposed in Canada, the Correctional Service was obliged to give the applicant credit for his American pre-sentence custody in accordance with the accepted Canadian practice in which judges deduct pre-sentence custodial time from the sentence to be imposed. In the circumstances, the Correctional Service committed no error in calculating the parole eligibility date. The fact that the American practice for dealing with pre-sentence custody may be different is not relevant given the applicable Canadian statutory scheme.

[9]      The application for judicial review is dismissed.

Judge

OTTAWA, ONTARIO

October 9, 1997