Docket: T-881-14
Citation: 2014 FC 1096
Ottawa, Ontario, November 19, 2014
PRESENT: The Honourable Mr. Justice Manson
BETWEEN:
ROBBIE RICHARD ERASMO
Applicant
and
CANADA (ATTORNEY GENERAL)
Respondent
JUDGMENT AND REASONS
[1]
This an application for judicial review
of the Applicant’s sentence calculation issued by a Sentence Manager on March
10, 2014, from Stony Mountain Institution in Manitoba, brought pursuant to section
18.1(4)(b) of the Federal Courts Act, RSC 1985, c F-7 [the Act]. The
Applicant seeks the exclusion of the youth Community Supervision Order [CSO] of
36 months from his sentence calculation.
I.
Background
[2]
The Applicant was born on February 4, 1992, and
is currently twenty-two years old. He is at present an inmate at Stony Mountain
Institution in Manitoba.
[3]
The Applicant committed second degree murder on
September 12, 2009, and was arrested on April 15, 2010 and charged as a youth.
[4]
The Applicant committed a robbery on April 4,
2010, for which he was also arrested on April 15, 2010, and charged as an
adult.
[5]
The Applicant pled guilty on August 26, 2011
pursuant to the Youth Criminal Justice Act, SC 2002, c 1 [YCJA] to the
charge of second degree murder. He received a seven year sentence consisting of
four years of committal to custody and three years of CSO in Youth Court
(pursuant to section 42(2)(q)(ii) of the YCJA).
[6]
The Applicant pled guilty on February 24, 2014,
in the Court of Queen’s Bench to the charge of robbery and received a four year
consecutive adult sentence. At the conclusion of the sentencing, the Applicant
had approximately 1.5 years left of the custodial portion of his youth
sentence.
[7]
On March 10, 2014, the Applicant received a
letter of calculation from the Correctional Service of Canada with respect to
the totality of his youth sentence and adult sentence in terms of release
dates. The certified copy of the specific calculations was dated March 12,
2014.
[8]
Pursuant to section 743.5(1) of the Criminal
Code, RSC, 1985, c C-46 [Criminal Code], since the Applicant
received his adult sentence while still subject to the YCJA Sentence, the
remainder of the YCJA sentence, including both the remaining custodial and CSO
portions, was required to be dealt with as an adult sentence. As the Applicant
was subject to two sentences, they were merged pursuant to section 139(1) of
the Corrections and Conditional Release Act, SC 1992, c 20 [CCRA], to be
deemed one adult sentence. This process is triggered automatically by statute.
[9]
At the time the Applicant received his adult
sentence, he had approximately 4 years and 6 months remaining of his youth
sentence (including CSO). Following the merger of his two sentences, the
aggregate sentence became 8 years, 6 months and 2 days (expiring August 25,
2022). A table outlining the different types of conditional release and their
eligibility date is set out below.
|
Type of Conditional Release
|
Eligibility Date
|
|
Unescorted Temporary Absence
|
July 26, 2015
|
|
Day Parole
|
June 25, 2016
|
|
Full Parole
|
December 25, 2016
|
|
Statutory Release
|
October 26, 2019
|
[10]
The decision under review is the Applicant’s
sentence as calculated by the Correctional Service of Canada of a Sentence
Manager from Stony Mountain Institution, integrating the Applicant’s sentence
from a Youth Court charge of second degree murder with his adult sentence for
robbery.
II.
Issue
[11]
The issues in the present application are as
follows:
A.
Does section 743.5 of the Criminal Code
violate sections 7 or 9 of the Canadian Charter of Rights and Freedoms
[the Charter] by converting an existing youth sentence into an adult sentence
of imprisonment, when that sentence is combined with a subsequent sentence of
adult imprisonment;
B.
Do sections 75, 196 and 197 of the Safe
Streets and Communities Act, SC 2012, c 1 [SSCA] amending sections
2, 99(2)(b) and 119.2 of the CCRA violate sections 7, 9, or 11(i) of the
Charter; and
C.
If there is a Charter violation, does it
constitute a reasonable limit prescribed by law, as can be demonstrably
justified in a free and democratic society, pursuant to section 1 of the
Charter.
III.
Standard of Review
[12]
The appropriate approach to determine the issues of
this case involves the constitutionality of the legislation involved in the
Sentence Manager’s decision. The standard of review issues of administrative
law are not relevant to the case at bar. If the case had involved the review of
an administrative decision based on the application and interpretation of the
Charter, the correctness standard would apply (Multani v Commission
Scolaire Marguerite-Bourgeoys, 2006 SCC 6 at paras 20-21).
IV.
Relevant legislation
[13]
The relevant sections of the legislation in
issue are attached as Appendix A.
V.
Analysis
[14]
The Applicant seeks an order that his parole
eligibility dates and statutory release date be recalculated so as to exclude
the 3 year portion of his youth sentence to be served in the community [his
CSO]. This is requested in one of two ways: (1) that the statutory scheme set
out by section 743.5 of the Criminal Code in combination with section
139 of the CCRA be found in violation of the Charter, or in the alternative (2)
by operation of section 140 of the YCJA a modification of the calculation be
made excluding the 3 year CSO.
[15]
Essentially, the Applicant’s arguments centre on
alleging Charter breaches that cannot be “saved” under section 1 of the
Charter. However, for the reasons that follow, while there has been some change
to the Applicant’s sentence by operation of the merging scheme under the Criminal
Code and the CCRA, those changes do not affect the essential character of
his sentence, since its length is the same as his original sentence, and he
benefits from the parole system available under the CCRA regime, which mitigate
the effects of the different approach to conditional release under the YCJA.
[16]
The Applicant’s youth sentence was one single
sentence of seven years, that was to be served in two forms, not two separate
dispositions of four and three years respectively. Given that the Applicant’s
youth sentence should be considered a single sentence, its entirety is eligible
to merge with his adult sentence, resulting in the correct calculation made by
the Sentence Manager at Stony Mountain Institution. The Applicant incorrectly
characterizes the calculation in suggesting that his sentence is lengthened by
the merging provisions, when in fact it is the manner in which a portion of his
sentence is to be served that has changed.
A.
Section 7 Charter Arguments
[17]
The Applicant submits that following the
decision in Charkaoui, in order to engage section 7 of the Charter, one
must prove first “that there has been or could be a deprivation
of the right to life, liberty and security of the person, and second, that the
deprivation was not or would not be in accordance with the principles of
fundamental justice. If the claimant succeeds, the government bears the burden
of justifying the deprivation under section 1”. The principles of
fundamental justice have been found to “include a
guarantee of procedural fairness, having regard to the circumstances and
consequences of the intrusion on life, liberty or security…” (Charkaoui,
Re, [2007] 1 S.C.R. 350 at paras 12 and 19 [Charkaoui]).
[18]
The procedure under section 743.5(1) and (3)(a)
by statutory fiat in operation with section 139(1) of the CCRA changes the
Applicant’s 3 year CSO into a sentence of imprisonment, without the ability to
challenge the process’ fairness in a hearing, thus infringing his section 7
right to liberty. Given the engagement of section 7 rights upon risk of
incarceration (Malmo-Levine) and the acknowledgement of guarantees of
procedural fairness (Charkaoui), the Applicant submits that section
743.5 of the Criminal Code and 139 of the CCRA do not entail a fair
judicial process (R v Malmo-Levine, [2003] 3 S.C.R. 571 at para 89 [Malmo-Levine];
Charkaoui at paras 12, 19).
[19]
The Applicant also states that the principles
and purposes of sentencing under the YCJA are materially different than those
under the Criminal Code, and that Parliament has distinctly recognized
those offenders who commit crimes as youth are of diminished moral
blameworthiness and deserve unique procedures, rights and protections. Sections
3 and 38 of the YCJA demonstrate the intention to promote rehabilitation and
reintegration of young persons into society, and further mandate that any
sentence imposed be the least restrictive available to capture the YCJA’s purposes.
Emphasis on rehabilitation and reintegration have been affirmed by the Supreme
Court of Canada in R v BWP, [2006] 1 S.C.R. 941 at para 4, when deciding
that general deterrence was not a relevant factor in sentences under the YCJA.
[20]
The incorporation of CSO portions of a youth
sentence into the definition of “sentence” in the CCRA for the purposes of
parole eligibility are inconsistent with the protection contained in section
83(2)(e) of the YCJA (that placements where young persons are treated as adults
not disadvantage them respecting their eligibility for and conditions of
release), as well as liberty interests enshrined in section 7 of the Charter.
[21]
Accordingly, the Applicant argues that the
effect of the Criminal Code in conjunction with the CCRA is to “violate the entire spirit, intention and purpose of the
sentencing principles and unique provisions afforded to offenders being
sentenced in accordance with the provisions of the YCJA.” It is further
fundamentally unfair that someone in the Applicant’s position lose the benefit
of the CSO portion of his youth sentence due to a subsequent sentence to an
adult term of imprisonment for an unrelated offence not committed while in
custody or under supervision.
[22]
The Applicant also points out that the Supreme
Court has acknowledged the difference between custodial and non-custodial
sentences, and the inapplicability of parole to an offender who is under a
conditional sentence and not incarcerated. The provisions deem a
non-incarceratory disposition of significant time under the YCJA as a deemed
sentence of incarceration because of a subsequent adult sentence (R v CMA,
[1996] 1 S.C.R. 500; R v Proulx, [2000] 1 S.C.R. 61 at paras 42-44).
[23]
As such, the Applicant argues that the scheme in
the legislation is overly broad to achieve its objectives triggering section 7
protection. Concerns regarding the Applicant’s serious charge as a youth were
addressed in sentencing. The idea that a subsequent and unrelated offence could
collapse the disposition regarding his CSO without cause or fault is overbroad
and not justifiable.
[24]
The Respondent concedes that the Applicant’s
section 7 rights are engaged by the change in form of the Applicant’s sentence.
It is then necessary to proceed to step two of the process set out in Charkaoui
at paras 12, 19: the Applicant must establish that this deprivation is not
in accordance with the principles of fundamental justice.
[25]
The process of merging youth and adult sentences
under a single sentence managed under the adult CCRA regime is an automatic
one, put into motion upon receiving an adult sentence when someone is in the
Applicant’s situation. While the Applicant is correct that there is no hearing
to challenge the fairness of the process, the process itself is a basic
calculation based on sentences established in previous hearings, that
themselves provided the Applicant with adequate notice of procedural fairness,
as required by the principles of fundamental justice.
[26]
The automatic operation of legislation does not
involve any discretion and thus does not necessitate a hearing. Any challenge
to such an operation is properly addressed through judicial review. In Cooper
v Canada (Attorney General), 2002 FCA 374 at para 8, and more recently in
this Court, in Capra v Canada (Attorney General), 2008 FC 1212 at paras
65-66, it was decided that the principles of fundamental justice are respected
in an applicant’s trial, conviction and sentencing. There is no remaining
determination of “fault” required when the automatic operation of the
legislation occurs; therefore, a “fault-based” hearing is not necessary. A
change in sentence, regardless of whether it is unfavorable to an applicant, “is not, in itself, contrary to any principle of fundamental
justice” (Cunningham v Canada, [1993] 2 S.C.R. 143 at para 19).
[27]
In legislating to create an automatic merging
scheme for youth and adult sentences, under the YCJA and the Criminal Code,
both regimes allow for a portion of a sentence to be spent in the community
under supervision, as well as early release in some cases.
[28]
With respect to the allegation of diminished
moral blameworthiness of youth committing crimes, this principle was considered
in the Applicant’s sentencing for second degree murder in youth court. If the
Applicant had been tried as an adult for this crime, his sentence would have
been more onerous. While the youth sentence of seven years was initially
intended to be served in custody, as well as under community supervision,
merging it with his subsequent adult sentence does not change its essential
character, nor does it offend this principle.
[29]
The Applicant argues that since the Supreme Court in R
v M, [1996] 1 S.C.R. 500 at paras 61-62 [R v M]
recognized the difference between custodial and non-custodial sentences, and
the scheme under the Criminal Code and the CCRA affect the total amount
of the Applicant’s time incarcerated, this change indicates a negative effect
on his section 7 rights. However, while the Supreme Court acknowledged the
difference between different forms of a sentence, the Court affirmed in R v
M, that non-incarceratory portions of a sentence
(referring to grants of parole) do not represent a reduction in the sentence,
rather they are changes to the conditions under which a sentence is to be
served. Since the sentence itself remains the same, this distinction between
incarceratory and non-incarceratory conditions is not relevant.
[30]
I do not agree that the scheme is overly broad
to achieve the aims of the legislation. The legislators considered situations
like that of the Applicant in establishing the scheme, and tailored it to
apply.
B.
Section 9 Charter Arguments
[31]
The Applicant submits that the effect of the
amended provisions in the CCRA combined with the Criminal Code are to
increase the incarceration of an individual without due process in consideration
of moral culpability attached to the process. In effect, this creates an
absolute liability which offends the principles of fundamental justice,
contrary to section 9 of the Charter’s protection against arbitrary detention
or imprisonment (Reference re Motor Vehicle Act (British Columbia) S 94(2),
[1985] 2 S.C.R. 486 at paras 4-5).
[32]
There is no increase of the Applicant’s sentence
itself. Further, the sentences received by the Applicant were assigned after
due process had been afforded, and not as a result of absolute liability being
assigned.
[33]
As decided in Charkaoui, above, at
para 89, arbitrary detention in the context of section 9 of the Charter must
not have been made based on standards that are rationally connected to the
purpose of the power of detention. Since Parliament specifically sought to
tailor the scheme merging the Applicant’s youth and adult sentences to
situations such as his, the scheme is rationally tied to its purpose. The
Applicant’s section 9 rights were not infringed.
C.
Section 11(i) Charter Arguments
[34]
Further, the Applicant submits that given the
timing of the Applicant’s offenses and sentencing, as a result of amendments to
the CCRA, his punishment has changed. For his second degree murder charge, both
the incident and the sentencing took place before the amendments affecting his
incarceration. For the robbery, the incident was before the amendments but his
sentencing was after. The amendments have created a variation in punishment for
which section 11(i) of the Charter is engaged.
[35]
The Applicant’s position is that punishment is
to be given a liberal and purposive approach within the context of Charter
rights. A substantial portion of the Applicant’s youth disposition was
previously litigated as non-incarceratory and is now incarceratory by operation
of the related statutes. The Applicant should therefore be given the benefit of
the lesser punishment (R v Rodgers, [2006] 1 S.C.R. 554 at paras 6-61).
[36]
The Applicant submits that since his offenses
and sentencing largely took place before the SSCA amendments to the CCRA came
into effect, they should not be able to unfairly vary his punishment, as would
be contrary to section 11(i) of the Charter. However, the timing of the
amendments to the CCRA through the SSCA is not relevant here. Similar to the decision
in Van Buskirk, the relevant and operative portions of legislation are
section 734.5 of the Criminal Code and section 139 of the CCRA
(distinguishing this case from JP v Canada (Attorney General), 2009 FC
402). Since section 743.5 applied to the Applicant, it is unnecessary to
consider the temporal effect of the amendments to the CCRA (Van Buskirk v Canada (Solicitor General), 2012 FC 1463 at paras 48, 57-58).
[37]
The Applicant’s section 11(i) rights were not
infringed.
D.
Section 1 Charter Arguments
[38]
Dealing with section 1 of the Charter, the Applicant
states that since the Applicant has established a violation of his Charter
rights, the onus shifts to the Respondent to justify its infringements under
section 1. The Respondent must demonstrate first that the offending provisions
address a pressing and substantial legislative objective, second a rational
connection to that objective, third, minimal impairment to the right in
question, and fourth, proportionality between the effects of the violation and
the objective of the legislation (R v Oakes, [1986] 1 S.C.R. 103 at
paras 73-75 [Oakes]).
[39]
The Applicant concedes that punishing crime and
the protection of society are always pressing and substantial concerns, passing
the first step of the Oakes test.
[40]
However, the Applicant argues that the rational
connection stage cannot be established in the case at bar. A “well-crafted disposition provided for under the YCJA, with the
Youth Court endorsing and imposing the disposition on one of the most serious
offences in the Criminal Code”, extinguished due to statutory
amendments, could be seen to be rationally connected to the goal of punishing
crime and protecting society. There is no process to ascribe fault to the
Applicant as it is done by statutory fiat through a conversion process.
[41]
The Applicant also argues that minimal
impairment cannot be established, as the effect of the statutory scheme is to
significantly increase sentences. The 3 year CSO is quickly converted to 3
years of incarceration for the Applicant by operation of the Criminal Code,
the CCRA and the SSCA.
[42]
The Applicant further states that the
overbreadth of the scheme is again relevant at the minimal impairment stage
since the Supreme Court of Canada found in Heywood that “overbroad legislation… would appear incapable of passing the
minimal impairment branch of the section 1 analysis” (R v Heywood,
[1994] 3 S.C.R. 761 at para 71 [Heywood]).
[43]
Given that the Applicant’s section 7 rights are engaged by operation of
the statutory scheme merging his youth and adult sentences, it is necessary to
conduct a section 1 analysis. The central question under section 1 of the
Charter is set out in Canada (Attorney General) v Bedford, [2013]
3 SCR 1101 at para 125:
…whether the negative impact of a law on the rights of
individuals is proportionate to the pressing and substantial goal of the law in
furthering the public interest. The question of justification on the basis of
an overarching public goal is at the heart of section 1…
[44]
While the impact of a law on an applicant is a significant factor in the
Court’s evaluation of a law under section 1 of the Charter, “the court’s ultimate perspective is societal” (Alberta v Hutterian Brethren of Wilson Colony,
[2009] 2 S.C.R. 567 at para 69).
[45]
The pressing and substantial goal of section 743.5 of the Criminal
Code and section 139 of the CCRA is conceded by the Applicant. It is meant
to avoid the issues that arise when one inmate is subject to two different
regimes in serving sentences under the YCJA as well as the CCRA. The section is
meant to bring uniformity, and clarity for inmates in how their sentences are
calculated and governed. Considering the rational connection stage of the Oakes
test, the Applicant’s flawed characterization of his sentence as two distinct
dispositions, the CSO portion having been extinguished by the merging scheme,
is relevant. The section’s objectives and application do the opposite of
extinguishing a portion of his sentence; rather, they ensure the integrity of
the entire seven year sentence is maintained and merged. To set aside the CSO
portion of the Applicant’s sentence would have the effect of allowing him to shorten
his youth sentence as a benefit of being sentenced under the adult legislation.
The objectives of the scheme are thus rationally connected to their goal (Oakes,
above).
[46]
In considering whether the scheme is minimally impairing, it is
admittedly possible that the Applicant will spend some more time in custody
before obtaining presumptive release. This is, however, a necessary incident to
the new scheme. The Applicant will not spend three more years in custody due to
the merging provisions, thanks to the conditional release provisions of the
CCRA that now apply to his single, merged sentence. The Applicant’s sentence is
ultimately unchanged: it is merely the manner in which it is served that
changes. The Applicant is required to serve those three years of his sentence,
and they must be accounted for in any scheme. While the effects of merging his
sentences together may be unfavorable, they are minimally impairing.
[47]
It is unnecessary to conduct a full proportionality analysis since the
legislation has met the above three stages of the Oakes test.
E.
Section 140 of the YCJA
[48]
Finally, the Applicant states that the YCJA
contemplates specifically tailored sentences to each offender and that section
140 has been held to permit the court to modify the impact of section 743.5 of
the Criminal Code on an offender when it is inconsistent with the YCJA (R
v B(T), 2005 ONCJ 104 at paras 10-12).
[49]
Given the built in procedure for dealing with
inconsistencies between the YCJA and the Criminal Code, it would appear
as though there is no need to address the constitutional issues raised by
section 743.5 and the CCRA by simply allowing the Court to exclude the 3 year
CSO from the Parole Board of Canada’s calculation, on the basis that it is
inconsistent with the YCJA.
[50]
While section 140 of the YCJA is important to
keep in mind in any case involving a young offender, it is inappropriate to
engage it in the case at bar. The Criminal Code, as it is applies to the
Applicant, is not inconsistent with the YCJA. The Applicant was sentenced under
the YCJA and the integrity of that sentence is maintained under the merging
scheme. While it is a different approach to non-incarceratory portions of a sentence,
the CCRA provides for a conditional release and parole system that mitigate the
effects of the youth and adult sentences merging as a single adult sentence.
[51]
The importance of section 140 of the YCJA should
not be ignored, but it is unnecessary to engage its protections in this case.
THIS COURT’S
JUDGMENT is that:
1.
The Application is dismissed.
"Michael D. Manson"
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