Date: 20090619
Docket: A-202-09
Citation: 2009 FCA 211
Present: PELLETIER
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Appellant
and
J.P.
Respondent
REASONS FOR ORDER
PELLETIER J.A.
[1]
The
appellant Attorney General of Canada (the Attorney General) brings this motion
for:
1- a
stay of the order under appeal, that is, the decision of Mosley J. of the
Federal Court dated April 24, 2009, dealing with the interpretation of certain
provisions of the Corrections and Conditional Release Act, S.C. 1992, c.
20, dealing with parole eligibility for a young offender serving a period of
incarceration in an adult correction institution.
2-
an order of confidentiality with respect to certain materials to be filed in
connection with the appeal, the need for confidentiality arising from the fact
that at the time of the events giving rise to the proceedings under the Youth
Criminal Justice Act, the appellant was under the age of eighteen years.
3- an order settling
the contents of the appeal book.
[2]
For
the most part, the second and third heads of relief are not contentious and
will be granted. The issue is whether this Court should order a stay of the
order under appeal.
[3]
The
issue in the appeal is whether, for purposes of calculating the parole
eligibility of a person sentenced under the Youth Criminal Justice Act,
whose period of incarceration is served in an adult correctional institution,
the base period is the entire period of the sentence or simply the period of
incarceration, The National Parole Board decided that the base period was the
entire period of the sentence while the Federal Court decided that the base
period was the period of incarceration, The Attorney General appeals from the
Federal Court's decision and asks that the execution of the Federal Court's
order be stayed pending the disposition of the appeal.
[4]
The
conditions for granting a stay are the same as those for the granting of an
interlocutory injunction: see Manitoba (Attorney General) v.
Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at para. 29. Those
conditions are the existence of a serious question, irreparable harm, not
compensable in damages, should the stay (injunction) not be granted, and the
balance of convenience: see RJR – MacDonald Inc. v. Canada (Attorney
General),
[1994] 1 S.C.R. 311, at para. 35.
[5]
In
this case, it is conceded that there exists a serious question to be decided, The
real question is whether the public interest, as represented by the Attorney
General, will suffer irreparable harm, if the stay is not granted, As the
respondent has pointed out, the Attorney General has not submitted any
affidavit evidence in support of its arguments on irreparable harm, While
arguing that Mosley J.'s decision will have an effect on others whose situation
is similar to the respondent's, we have no idea how many cases might be
involved, While the harm to the public interest is not a function of the number
of cases which might be affected by the decision, the limited application of
decision may undermine a claim of irreparable harm.
[6]
The
Attorney General relies on the notion that an interference with the
administration or execution of a public duty is prima facie evidence of
irreparable harm: see para. 23 of the Attorney General's Memorandum of Fact and
Law, This is not such a case, This is a dispute about how the public duty is to
be performed, The National Parole Board, who is charged with the duty, has one
view, The Federal Court has another which, until it is set aside, has the force
of law, It is difficult to see how the interpretation of a statutory
disposition dealing with the calculation of parole eligibility, without more,
rises to the level of irreparable harm.
[7]
As
noted in Harkat v. Canada (Minister of Citizenship and Immigration) 2006
FCA 215, [2007] 1 F.C.R. 370, at paragraph 16, the issue of the public interest
can also be considered under the heading of balance of convenience, The
Attorney General's argument on this point appears to be that since the
respondent will suffer no inconvenience unless he applies for full parole,
therefore the balance of convenience favours the Crown, In other words, the
respondent is not inconvenienced unless he seeks to exercise the rights which
the Federal Court's judgment would give him, It is difficult to see why this
should tilt the balance of convenience in the Crown's favour.
[8]
I
can see no basis for staying the execution of the order made by Mosley J.
pending the disposition of the Attorney General's appeal. The motion for a stay
of execution is dismissed.
"J.D.
Denis Pelletier"
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