COURT OF APPEAL FOR ONTARIO

CITATION: Haghparast-Rad v. Canada (Attorney General), 2015 ONCA 653

DATE: 20150928

DOCKET: C59528

Feldman, Rouleau and Watt JJ.A.

BETWEEN

Sam Haghparast-Rad

Appellant

and

The Commissioner of Corrections and the National Advisor Sentence Management and the Senior Manager International Transfers and

the Attorney General of Canada and the Warden of Collins Bay Institution

Respondents

Sam Haghparast-Rad, acting in person

David Aaron, for the Attorney General of Canada

Heard: April 8, 2015

On appeal from the judgment of Justice Gary W. Tranmer of the Superior Court of Justice, dated September 3, 2014, with reasons reported at 2014 ONSC 4845.

Rouleau J.A.:

A. Overview

[1] The appellant is a Canadian citizen who was convicted in Japan of smuggling drugs into the country. He was sentenced by a court and served part of his sentence in Japan. Subsequently, he was transferred to serve the remainder of his sentence in Canada, pursuant to the International Transfer of Offenders Act, S.C. 2004, c.21 ("ITOA"). Pursuant to s. 14 of the ITOA, upon the transfer, his penal sentence was adapted from 13 years to ten years, the maximum Canadian sentence for the offence in question. In calculating the appellant's warrant expiry date, Canada did not credit the 400 days of time he had spent in a workhouse in lieu of payment of a fine of 4 million yen.

[2] The appellant brought a habeas corpus application seeking release on the basis that the 400 days spent in a workhouse ought to have been credited and, had they been credited, his sentence would have been served in full. That application was dismissed and the appellant now appeals to this court.

B. facts

[3] The appellant was arrested in Japan on June 17, 2004 in relation to a conspiracy to import drugs into Japan.

[4] On February 4, 2005, he was convicted in Japan of two offences: a) the importation of stimulant for pecuniary gain, pursuant to s. 60 of the Penal Code (Act No. 45 of 1907), and paras. 1 and 2 of s. 41 of the Stimulant Drug Control Law; and b) the intended importation of a product, of which importation is prohibited under the Customs Law, pursuant to s. 60 of the Penal Code, paras. 1 and 3 of s. 109 of the Customs Law, and item 1 of para. 1 of s. 21 of the Customs Tariff Law.

[5] The judgment rendered by the Japanese court reads in part as follows:

Because a single act involves two offences in this case, however, pursuant to the initial portion of para. 1 of Section 54 and Section 10 of the Penal Code, [the Court] has decided to punish the act as a single offence by the imposition of the more severe penalty applicable to the offence of violating the Stimulant Drug Control Law (but the fine imposed is the fine applicable to the offence violating the Customs Law). From the prescribed penalties, [the Court] has selected a limited term of penal servitude and a fine and, within the limits of those penalties, imposes a term of penal servitude of 13 years and a fine of 4,000,000 yen on a defendant. In the term of penal servitude imposed, [the Court] has decided by virtue of Section 21 of the Penal Code to include 150 days out of the number of days of detention pending judgment, and it has decided by virtue of Section 18 of the Penal Code that the defendant, if he is unable to pay his fine in full, shall be detained in a prison workhouse, for a period calculated at the rate of one day for every 10,000 yen.

[6] The appellant did not pay the fine that was imposed. As a result, the default provision in the Japanese sentence was engaged, and the appellant was detained in a prison workhouse for a period calculated at the rate of one day for every 10,000 yen. This period amounted to 400 days. Accordingly, the appellant's custodial sentence of 13 years was paused while he served the 400 days in a prison workhouse. His custodial sentence resumed after the 400 days. As a result of serving these 400 days, the fine imposed has been satisfied.

[7] On December 11, 2008, the appellant was transferred from custody in Japan to a federal penitentiary in Canada pursuant to the ITOA. In accordance with s. 14 of the ITOA, the appellant's Japanese custodial sentence was adapted from the 13 years imposed to ten years, which is the maximum sentence in Canada for the offence in question.

C. issues

[8] The appellant's principal ground of appeal is that the 400 workhouse days served in Japan in lieu of payment of his fine ought to have been credited to his custodial sentence of ten years. Had he received credit for these 400 days, he would now have completed his sentence.

[9] In that regard, the appellant relies on s. 22(2) of the ITOA, which reads as follows:

The time that a Canadian offender spent in confinement, after the sentence was imposed and before their transfer, is subtracted from the length of the sentence determined in accordance with subsection (1). The resulting period constitutes the period that the offender is to serve on the sentence.

[10] The appellant submits that there was only one conviction and one sentence. As a result, all of the days he spent in detention in Japan, including the 400 workhouse days, were "spent in confinement", as contemplated by the ITOA. Therefore, they ought to have been credited towards his ten-year sentence now being served in Canada.

D. analysis

[11] I would dismiss the appeal. In my view, the application judge made no error of fact or law in concluding that the appellant's Japanese sentence had been lawfully implemented in Canada in accordance with the provisions of the ITOA.

[12] The Japanese court sentenced the appellant to 13 years of penal servitude for his violation of s. 60 of Japan's Penal Code and s. 41 of the Stimulant Drug Control Law. The court also imposed a separate punishment for the appellant's violation of Japan's Customs Law, that is, a fine of 4 million yen.

[13] Pursuant to s. 18 of Japan's Penal Code, the court stated that if the appellant could not pay the 4 million yen fine in full, "[he] shall be detained in a prison workhouse for a period calculated at the rate of one day for every 10,000 yen." Because the appellant could not pay the fine imposed, his 13-year penal sentence was paused for the length of time required to purge the fine.

[14] The judgment of the Japanese court provided that the fine was separate and apart from the custodial sentence. It was imposed for violating the Customs Law. The period spent in the workhouse on account of that fine is not, therefore, credited to the penal sentence imposed for his violation of s. 60 of Japan's Penal Code and s. 41 of the Stimulant Drug Control Law.

[15] When the appellant was transferred from detention in Japan to a federal penitentiary in Canada, the Japanese authorities confirmed that no time was to be subtracted from the appellant's penal sentence on account of the 400 workhouse days. This is because the two elements of the sentence, the fine and imprisonment, were separate, despite there being a single sentence.

[16] As explained by the Alberta Court of Appeal in Khadr v. Edmonton Institution, 2014 ABCA 225, 313 C.C.C. (3d) 491, aff'd 2015 SCC 26, 322 C.C.C. (3d) 465, at para. 5, it is a fundamental principle underlying the ITOA that "the courts in this country and the Canadian government must respect the substance of the sentence imposed in the foreign state ... along with its right to determine that sentence." It is not, therefore, up to the Canadian courts to second-guess the appellant's Japanese sentence or to convert it to something other than what it is.

[17] Respecting the Japanese sentence means respecting Japan's ability to impose different elements of a sentence cumulatively, that is, consecutively. Respecting the cumulative nature of the Japanese sentence of imprisonment and fine can only be achieved by acknowledging that it is possible for these two elements to be served consecutively, with one aspect of the sentence being extinguished completely before the other.

[18] On the facts of this case, respect for the sentence is shown by holding that the "fine" element of the sentence was expended before the transfer occurred and, as confirmed by the Japanese authorities, the 400 workhouse days were on account of the fine only.

[19] The fact that the fine and the imprisonment are technically elements of the same sentence is not relevant. When interpreting s. 22(2) of the ITOA, the court should consider only the time spent "in confinement" on account of the term of imprisonment imposed. The 400 workhouse days served by the appellant to purge the fine imposed by the court for violating the Customs Law were not on account of the 13-year penal sentence imposed by the Japanese court. Only the penal sentence was transferred. The fine is no longer exigible by the Japanese government, as the appellant already satisfied that part of the sentence.

[20] In his factum, the appellant raises additional grounds of appeal. He alleges that the application judge failed to shift the onus to the respondents to justify the continued incarceration, misinterpreted the nature of the Japanese sentence and erred in his interpretation of the ITOA.

[21] I would not give effect to these submissions. The application judge did not err in his interpretation of the ITOA, nor did he misinterpret the nature of the Japanese sentence. As to the onus issue, the application judge acknowledged that the onus was on the respondents. He then went on to find that the onus had been met, and the lawfulness of the deprivation of liberty had been demonstrated.

E. conclusion

[22] For these reasons, I would dismiss the appeal.

Released: (KF) September 28, 2015

"Paul Rouleau J.A."

"I agree K. Feldman J.A."

"I agree David Watt J.A."