ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-14-310
DATE: 2014 Sep 03
BETWEEN:
SAM HAGHPARAST-RAD
Applicant
– 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
Self-represented
David Aaron, for the Respondents
HEARD: August 19, 2014 at Kingston
Tranmer, J.
Habeas corpus DECISION
NATURE OF THE APPLICATION
[1] The Applicant has styled these proceedings as “Application for Habeas Corpus”. While he has claimed a number of items of relief, his position is that if he is successful in this application, he is entitled to be released immediately from federal penitentiary custody and was so entitled to be released as of June 17, 2014. His position is that his sentence, if properly calculated by penitentiary authorities, was served in full as of that date.
[2] For oral reasons given at the outset of the hearing, the Warden of Collins Bay institution was added as a party and the title of proceedings ordered amended accordingly.
BACKGROUND FACTS
[3] On June 17, 2004, the Applicant was arrested in Japan.
[4] It is common ground between the parties that on February 4, 2005, he was convicted of two offences and that on February 19, 2005, his sentence commenced.
[5] The certified copy of the Final Judgment of the Japanese Court stated that the Applicant was convicted of firstly, the importation of the stimulant for pecuniary gain under section 60 of the Penal Code and paragraph 1 and paragraph 2 of section 41 of the Stimulant Drug Control Law, and secondly, the attempted importation of a product of which is prohibited under the Customs Law under section 60 of the Penal Code and paragraph 1 and paragraph 3 of section 209 of the Customs Law and item 1 of paragraph 1 of section 21 of the Customs Tariff Law.
[6] The Judgment 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.
Formal Adjudication
The court sentences the defendant to a term of penal servitude of 13 years and to a fine of 4,000,000 yen.
Of the period of detention of the defendant pending judgment, 150 days shall be included as part of the above term of penal servitude.
Where the defendant cannot pay the above fine in full, he shall be detained at a prison workhouse for a period calculated at the rate of one day for every 10,000 yen.
[7] Because the Applicant did not pay the fine that was imposed, “My sentence stopped for 400 days between October 19, 2005 until November 22, 2006 in order to satisfy the payment of the fine. However, I remained in “confinement” and “experienced deprivation of liberty.” (Affidavit of Applicant, para.22). This is the default provision in the Judgment whereby he was to be detained in a prison workhouse for a period calculated at the rate of one day for every 10,000 yen, i.e. 400 days. “On November 23, 2006 my sentence resumed again.” (Affidavit of Applicant, para.24).
[8] On October 3, 2008, the Applicant signed a consent to transfer to Canada to complete his sentence in Canada.
[9] On December 11, 2008, the Applicant was transferred from custody in Japan to Canada into federal penitentiary custody. In or about the month of March 2009, he was transferred to Collins Bay Institution, minimum risk unit.
[10] It is common ground that the transfer was pursuant to the International Transfer of Offenders Act, S.C. 2004, c.21 (ITOA).
THE ISSUES
[11] The record indicates that the Canadian correctional authorities have made several different calculations of the sentence that the Applicant must serve.
[12] It is common ground that pursuant to the ITOA, s. 13 and 14, the Applicant must serve a sentence of 10 years in custody commencing February 19, 2005.
[13] The first issue raised by the Applicant is that the Canadian correctional authorities have acted unlawfully in that they have not counted the 400 days spent in the prison workhouse in default of payment of the fine as against his sentence of incarceration.
[14] The Applicant also submits that although the Japanese authorities gave him credit of 165 days pretrial custody as against his 13 year sentence, he was in fact in custody for a total of 247 days, and therefore, is entitled to credit against his sentence of incarceration of another 82 days.
ANALYSIS
[15] The Alberta Court of Appeal in Khadr v. Edmonton Institution 2014 ABCA 225, [2014] A.J. No. 711 has recently dealt with the ITOA. At paragraph 5 of that decision, that court identifies the fundamental principle underlying the ITOA as being that the courts in Canada and the Canadian government must respect the substance of the sentence imposed in the foreign state, along with its right to determine that sentence.
[16] The Alberta Court of Appeal held that the method by which the sentence imposed in the foreign state may be dealt with by Canada is the continued enforcement method. “Under this procedure, the administering state [Canada] is bound by the legal nature and duration of the foreign sentence.” It cites section 13 of the ITOA as authority for that principle. (para.31).
[17] “Adaptation is the one exception to the continued enforcement method of recognition of a foreign sentence. ... [This can arise where]…” The foreign sentence is incompatible in nature or duration with the laws of [Canada].” (para.35).
[18] Adaptation occurred in the Applicant’s case because section 14 of the ITOA operated in his favour, reducing the Japanese sentence from 13 years in custody to 10 years in custody being the maximum sentence provided for in Canadian law for the equivalent offence.
[19] As stated in Khadr, para.54, the sentence imposed by Japan is to be enforced as if that sentence had been imposed by a Canadian court unless adaptation of that sentence is required by law as it was pursuant to s. 14 ITOA.
[20] Section 13 of the ITOA supports the principle of respect for the sentence imposed on the Applicant by the Japanese court, “the enforcement of a Canadian offender’s sentence is to be continued…”.
[21] I agree with the submission by counsel for the Respondent that the Japanese Court intended to sentence and in fact, sentenced the Applicant to both a sentence of incarceration, namely 13 years, and to a fine, or detention at a prison workhouse in default of payment of the fine. The evidentiary basis for this conclusion is found in several places in the record before me. The Applicant recognizes the distinction in his own words in his affidavit at paragraph 22 and 24, which I have quoted above. He was convicted of two distinct offences. The sentencing court specifically stated in its reasons “but the fine imposed is the fine applicable to the offence of violating the Customs Law.” Correspondence from the Correction Bureau, Ministry of Justice Japan to the First Secretary and Consul Embassy of Canada in Japan stated that the Detailed Sentence Computation included,
Sentence: 13 years of imprisonment with work and a fine of …,
The term he was detained in a workhouse on the grounds that he was unable to pay the full amount of the fine of 4,000,000 yen: From October 19, 2005 to November 22, 2006 (400 days) which should not be included in the term of the sentence.” (Affidavit of Chris Hill, Ex. A) It is also significant on this point that the Japanese authorities clearly considered the fine sentence fully completed by the time of the transfer on December 11, 2008.
[22] On the record before me, in order to respect the Japanese intended sentence at the time of transfer, the sentence for Canada to continue the enforcement of was the balance of the 13 year period of incarceration, the serving of which had been paused by the Japanese authorities while the Applicant was detained in the prison workhouse for default in payment of the fine.
[23] It is clear that Japan treated the sentences imposed on the Applicant in the nature of what Canadian law recognizes as “consecutive” not as “concurrent.”
[24] The Applicant bases his argument that his present incarceration should be reduced by this 400 days on s. 22(2) of the ITOA, “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.” He submits that he spent 400 days “in confinement after sentence was imposed” and therefore, his total sentence should be reduced by those 400 days. He submits that any ambiguity on the point should be resolved in his favour because his liberty is at stake. He cites R. v. Bodenstein [1998] O.J. No. 4059 ONCA and Marcotte v. Canada (Deputy Attorney General) 1974 1 (SCC), [1976] 1 S.C.R. 108 as authority for that proposition.
[25] However, because I have accepted the Japanese sentence as I have described above, there is no ambiguity. The Japanese sentencing court intended and, in fact, it has occurred that the fine sentence had been served by way of detention in the prison workhouse for 400 days prior to the Applicant’s transfer. The Japanese sentencing court did not intend that 400 days to count as against its 13 year sentence of incarceration and it has specifically stated and demonstrated that it did not count it as such. On this point, it is also to be noted that the Japanese sentencing court specifically did consider in favour of the Applicant, crediting him with 150 days “out of the number of days of detention pending judgment.” That is, the Japanese sentencing court adverted specifically to what time should count as against the 13 year sentence.
[26] In my view, the interpretation of ss. 22(1) and (2), in their grammatical and ordinary sense harmoniously with the scheme of the ITOA, the object of the Act and the intention of Parliament focuses on the words “The length of a Canadian offender’s sentence” and “the sentence.” The sections refer to “the sentence.” In the Applicant’s case, this is the 13 year penal sentence of incarceration. Section 22(2) clearly means “the time that a Canadian offender spent in confinement on account of “the sentence”… .” The clear intent is that the words that I have added “on account of “the sentence”” should be read in to reflect the legislative intent. A result not intended by the foreign sentencing court would arise if the section was not so interpreted. The clear intention of the Japanese sentencing court would be defeated. (Khadr, para. 46; Rizzo & Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 S.C.R. 27, para. 21).
[27] For these reasons, I find against the Applicant’s submission that he is entitled to have his current outstanding sentence reduced by 400 days, representing the time that he spent in detention in the prison workhouse for failure to pay the fine. I find that these 400 days were served as against his fine sentence, but that he has not served these 400 days as against his 13 year (now 10 year) jail sentence. That was the intention of the Japanese sentencing court on the evidence before me.
[28] The second point the Applicant raises is that although he spent 247 days in presentence custody, the Japanese court gave him credit only for 165 days. The Canadian correctional authorities also gave him credit only for the 165 days and not the 247 days spent in prior to sentence custody.
[29] As I have quoted above, the Japanese sentencing court specifically gave credit only for 150 days “out of the number of days of detention pending judgment.” Clearly, that court knew it was not giving credit for all of the time spent in custody prior to sentence. Section 22(1) of the ITOA is a full answer to the Applicant’s submission on this point. It provides “the length of a Canadian offender’s sentence equals the length of the sentence imposed by the foreign entity, minus any time that was, before their transfer, recognized by the foreign entity as a reduction…” (Emphasis added).
[30] Accordingly, the Applicant fails on his second submission.
[31] For these reasons, in my view, the sentence being enforced by Canadian correctional authorities should be one of 10 years less 165 days commencing February 19, 2005, with no reduction for the time served of 400 days in the prison workhouse. The 400 days spent in the prison workhouse did not count against the 13 year jail sentence. To be clear, I agree with the Respondent’s position set out in his paragraph 32 of his Factum that, on October 19, 2005, the Applicant’s 13 year sentence was paused under Japanese law. He had served 242 days of that penal sentence. When that penal sentence resumed on November 13, 2006, under Japanese law, he began serving day 243 of that penal sentence. That is clearly the proper interpretation by Japan, on the record before me.
[32] This Court has no authority to go behind the Japanese verdict or challenge the sentence imposed by or the interpretation of the sentence by Japan since this would contravene the principle of continued enforcement of foreign sentences in Canada. (Khadr, para. 59) “…what is to be enforced is the sentence imposed in [Japan], not some imaginary sentence imposed by Canadian court. This reflects Canada’s decision to choose the continued enforcement method, not the conversation method, of recognizing sentences imposed by foreign states.” (Khadr, para. 56).
[33] I agree with the Respondent at paragraph 39 of his Factum, by asking this Court to re-interpret his Japanese sentence by reducing his release date by 400 days to account for the time he spent in a workhouse paying off his Customs Law fine, the Applicant asks this court to change the substance of the sentence imposed by Japan. Parliament has not empowered this Court to do so.
[34] While the Respondent agrees that the Applicant has made out a deprivation of liberty, for these reasons, I find that the Respondent has met the onus placed on it of establishing the lawfulness of that deprivation.
[35] Accordingly, this application for habeas corpus is dismissed
The Honourable Mr. Justice Gary W. Tranmer
Released: September 3, 2014
COURT FILE NO.: CR-14-310
DATE: 2014 Sep 03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SAM HAGHPARAST-RAD
Applicant
– 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
HABEAS CORPUS DECISION
Tranmer, J.
Released: September 3, 2014