Date: 20100407
Docket: A-202-09
Citation: 2010 FCA 90
CORAM: BLAIS
C.J.
NADON
J.A.
EVANS
J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
J.P.
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1]
On April
24, 2009, Mosley J. of the Federal Court, in decision 2009 FC 402, allowed the
respondent’s application for judicial review which challenged the National Parole
Board’s (the “Board”) calculation of his parole eligibility dates.
[2]
The main
issue raised by this appeal is the interpretation of the word “sentence” found
in subsections 119(1), 120(1) and 128(1) of the Corrections and Conditional
Release Act, S.C. 1992, c. 20 (the “CCRA”). More particularly, the
issue is whether the word “sentence” found in these provisions means only the
custodial component of a custody and supervision order under the Youth
Criminal Justice Act, S.C. 2002, c. 1 (the “YCJA”), or whether it
means both components of such an order.
The Facts
[3]
A brief
summary of the relevant facts will be helpful to an understanding of the issues
before us.
[4]
The
respondent murdered his mother in 1999. At the time, he was 14 years old.
[5]
On March
7, 2008, the respondent was convicted of second degree murder and was sentenced,
pursuant to subparagraph 42(2)(q)(ii) of the YCJA, to 22 months of
custody and 36 months of community supervision.
[6]
Because he
was 22 years old at the time of sentencing, the respondent was committed to a
provincial correctional facility for adults to serve his sentence, namely, the
Fraser Regional Correctional Centre in Maple Ridge, British Columbia. In July 2008, he was
transferred to the Vancouver Island Regional Correctional Centre.
[7]
Because of
his placement in a correctional facility for adults, the Board asserted
jurisdiction over him.
[8]
Because of
its view that the respondent was serving a sentence of 58 months and, hence, a
sentence of over two years for the purpose of subsection 119(1) of the CCRA,
the Board determined that the respondent’s parole eligibility, in accordance
with paragraph 119(1)(c), was as follows: (i) for day parole: April 17,
2009; (ii) for full parole: October 17, 2009; (iii) warrant expiry: January 6,
2013.
[9]
The respondent
did not agree with the Board’s calculation and sought a review thereof. In his
view, the calculation of his parole eligibility was to be made in accordance
with paragraph 119(1)(d) of the CCRA, as his sentence was one of
less than two years, i.e. the 22 months of custody. On October 3, 2008, the
Board advised him that the calculation would not be changed.
[10]
With the
help of legal counsel, the respondent made a further attempt to convince the
Board that it had wrongly calculated his eligibility dates. By letter dated
December 9, 2008, the Board advised the respondent that the calculation would
stand.
[11]
On January
7, 2009, the respondent filed his judicial review application in the Federal
Court. Specifically, he asserted that the Board had miscalculated his
eligibility date and that he was eligible for day parole after serving 1/6 of
his 22-month custodial sentence and eligible for full parole after serving 1/3
of his 22-month custodial sentence.
[12]
He later
amended his application to seek a declaration that his parole expired at the
end of his 22-month custodial sentence.
[13]
On April
24, 2009, Mosley J. rendered the following Judgment:
IT IS THE
JUDGMENT OF THIS COURT that
1. for the
purpose of calculating the applicant’s eligibility for day and full parole,
only the 22 month custodial portion of the applicant’s sentence is to be
included by the National Parole Board and the calculation shall not include the
conditional supervision portion of the sentence;
2. the
National Parole Board’s jurisdiction to grant, terminate or revoke parole and
to supervise the applicant expires at the end of the 22 month custodial portion
of the applicant’s youth sentence subject to the following provision;
3. should
custody be continued until the end of the conditional supervision portion of
the sentence or the applicant is returned to custody for the remainder of the
sentence by Order of the Youth Justice Court, the Board will retain
jurisdiction;
4. the
applicant is awarded costs for this application according to the normal scale.
[14]
On May 4,
2009, the appellant commenced the appeal now before us.
The Issues
[15]
The appeal
raises the following issues:
1.
Whether
the term “sentence” for the purpose of calculating parole eligibility under the
CCRA includes only a portion of the sentence imposed under subparagraph
42(2)(q)(ii) of the YCJA;
2.
Whether
the Board ceases to have jurisdiction over an individual transferred to an
adult correctional facility pursuant to the provisions of the YCJA once
the custodial portion of the sentence imposed under subparagraph 42(2)(q)(ii)
ends, irrespective of whether the individual remains on full parole at the
time; and
3.
Whether
the Board is obliged to assert jurisdiction over an individual who is committed
to custody in an adult correctional facility during the conditional supervision
portion of a sentence imposed under subparagraph 42(2)(q)(ii) of the YCJA.
[16]
Before
proceeding, I should make it clear that the issues before us are now moot in
that, based on the Board’s calculations of the respondent’s parole eligibility,
he was eligible for full parole on October 17, 2009. Consequently, our decision
has no practical application in the circumstances of this case. However, in Borowski
v. Canada (Attorney General), [1989] 1 S.C.R. 342, the Supreme Court of Canada
indicated that in certain circumstances, notwithstanding that a case raised
only a hypothetical or abstract question, the Court could hear the matter. In
formulating this view, the Court identified three basic policies behind the
mootness doctrine:
1.
The
Court’s capability of resolving legal disputes finds its roots in the
adversarial relationship between parties who have a stake in the outcome of a
case. This ensures the likelihood that the issues will be “well and fully
argued by parties who have a stake in the outcome” (see. pages 358-359 of the
Reasons).
2.
The
doctrine of mootness promotes judicial economy in that there is a need to
“ration scarce judicial resources among competing claimants” (see. p. 360 of
the Reasons).
3.
Courts
should be reluctant to adjudicate matters in the absence of a “dispute
affecting the rights of the parties”, as this may be seen as an intrusion into
the role of the legislative branch (see. p. 370 of the Reasons).
[17]
In the
present matter, I am satisfied that the promotion of judicial economy plays in
favour of a determination of the issues raised by the appeal. Given the nature
of parole eligibility calculations and the inherent delays in the judicial and
administrative processes, cases such as the one now before us will, more often
than not, be moot before reaching this Court. The issues raised by the appeal
concern important aspects of the YCJA and the CCRA and I have no
doubt that the question of parole eligibility for young offenders serving their
youth sentence in an adult facility is bound to arise again. Thus, given that
the issues were fully and vigorously argued by both sides, a determination of
these issues will make better use of scarce judicial resources and will also
better serve the administration of justice.
[18]
I therefore
conclude that we should determine the issues now before us in this appeal.
Legislation
[19]
It will be
useful, at the outset, to reproduce the provisions of both the CCRA and
the YCJA upon which depend the answers to the questions raised in this
appeal:
A. Corrections and Conditional Release
Act
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A. Loi sur le système
correctionnel et la mise en liberté sous condition
|
2. (1) "sentence" means a sentence of imprisonment and
includes a sentence imposed by a foreign entity on a Canadian offender
who has been transferred to Canada under the International Transfer of
Offenders Act and a youth sentence imposed under the Youth Criminal
Justice Act;
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2. (1) « peine » ou « peine d’emprisonnement » S’entend
notamment d’une peine spécifique imposée en vertu de la Loi sur le système
de justice pénale pour les adolescents et d’une peine
d’emprisonnement imposée par une entité étrangère à un Canadien qui a été
transféré au Canada sous le régime de la Loi sur le transfèrement
international des délinquants.
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119. (1) Subject to section 746.1 of the Criminal Code, subsection
140.3(2) of the National Defence Act and subsection 15(2) of the Crimes
Against Humanity and War Crimes Act, the portion of a sentence that must
be served before an offender may be released on day parole is (…)
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119. (1) Sous réserve de
l’article 746.1 du Code criminel, du paragraphe 140.3(2) de la Loi
sur la défense nationale et du paragraphe 15(2) de la Loi sur les
crimes contre l’humanité et les crimes de guerre, le temps d’épreuve pour
l’admissibilité à la semi-liberté est : (…)
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(c)
where the offender is serving a sentence of two years or more, other than a
sentence referred to in paragraph (a) or (b), the greater of
(i) the portion
ending six months before the date on which full parole may be granted, and
(ii) six
months; or
(d) one half of the portion of the sentence that must be served before
full parole may be granted, where the offender is serving a sentence of less
than two years.
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c) dans le cas du délinquant qui purge une
peine d’emprisonnement égale ou supérieure à deux ans, à l’exclusion des
peines visées aux alinéas a) et b), six mois ou, si elle est plus longue, la
période qui se termine six mois avant la date d’admissibilité à la libération
conditionnelle totale;
d) dans le cas du délinquant qui purge une peine
inférieure à deux ans, la moitié de la peine à purger avant cette même date.
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120. (1) Subject to
sections 746.1 and 761 of the Criminal Code and to any order made
under section 743.6 of that Act, to subsection 140.3(2) of the National
Defence Act and to any order made under section 140.4 of that Act, and to
subsection 15(2) of the Crimes Against Humanity and War Crimes Act, an
offender is not eligible for full parole until the day on which the offender
has served a period of ineligibility of the lesser of one third of the
sentence and seven years.
…
128. (1) An
offender who is released on parole, statutory release or unescorted temporary
absence continues, while entitled to be at large, to serve the sentence until
its expiration according to law.
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120. (1) Sous réserve des articles 746.1 et 761 du Code
criminel et de toute ordonnance rendue en vertu de l’article 743.6 de
cette loi, du paragraphe 140.3(2) de la Loi sur la défense nationale
et de toute ordonnance rendue en vertu de l’article 140.4 de cette loi, et du
paragraphe 15(2) de la Loi sur les crimes contre l’humanité et les crimes
de guerre, le temps d’épreuve pour l’admissibilité à la libération
conditionnelle totale est d’un tiers de la peine à concurrence de sept ans.
…
128. (1) Le délinquant qui bénéficie d’une libération
conditionnelle ou d’office ou d’une permission de sortir sans escorte
continue, tant qu’il a le droit d’être en liberté, de purger sa peine
d’emprisonnement jusqu’à l’expiration légale de celle-ci.
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B. Youth Criminal
Justice Act
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B. Loi sur le système
de justice pénale pour les adolescents
|
2. (1) "youth sentence" means a sentence
imposed under section 42, 51 or 59 or any of sections 94 to 96 and
includes a confirmation or a variation of that sentence.
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2. (1) « peine spécifique » Toute peine visée aux
articles 42, 51, 59 ou 94 à 96 ou confirmation ou modification d’une
telle peine.
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38. (1) The purpose
of sentencing under section 42 (youth sentences) is to hold a young person
accountable for an offence through the imposition of just sanctions that have
meaningful consequences for the young person and that promote his or her
rehabilitation and reintegration into society, thereby contributing to the
long-term protection of the public.
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38. (1)
L’assujettissement de l’adolescent aux peines visées à l’article 42 (peines
spécifiques) a pour objectif de faire répondre celui-ci de l’infraction qu’il
a commise par l’imposition de sanctions justes assorties de perspectives
positives favorisant sa réadaptation et sa réinsertion sociale, en vue de
favoriser la protection durable du public.
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42. (1) A youth
justice court shall, before imposing a youth sentence, consider any
recommendations submitted under section 41, any pre-sentence report, any
representations made by the parties to the proceedings or their counsel or
agents and by the parents of the young person, and any other relevant
information before the court.
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42. (1) Le tribunal
pour adolescents tient compte, avant d’imposer une peine spécifique, des
recommandations visées à l’article 41 et du rapport prédécisionnel qu’il aura
exigés, des observations faites à l’instance par les parties, leurs
représentants ou avocats et par les père et mère de l’adolescent et de tous
éléments d’information pertinents qui lui ont été présentés.
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(2) When a youth justice court finds a young
person guilty of an offence and is imposing a youth sentence, the court
shall, subject to this section, impose any one of the following sanctions or
any number of them that are not inconsistent with each other and, if the
offence is first degree murder or second degree murder within the meaning
of section 231 of the Criminal Code, the court shall impose a
sanction set out in paragraph (q) or subparagraph (r)(ii)
or (iii) and may impose any other of the sanctions set out in this subsection
that the court considers appropriate:
(…)
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(2) Sous réserve des autres dispositions de
la présente loi, dans le cas où il déclare un adolescent coupable d’une
infraction et lui impose une peine spécifique, le tribunal lui impose l’une
des sanctions ci-après en la combinant éventuellement avec une ou plusieurs
autres compatibles entre elles; dans le cas où l’infraction est le meurtre
au premier ou le meurtre au deuxième degré au sens de l’article 231 du Code
criminel, le tribunal lui impose la sanction visée à l’alinéa q)
ou aux sous-alinéas r)(ii) ou (iii) et, le cas échéant, toute autre sanction
prévue au présent article qu’il estime indiquée :
(…)
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(q) order the young person to serve
a sentence not to exceed
[…]
(ii) in the case of second degree murder,
seven years comprised of
(A) a committal to custody, to be served
continuously, for a period that must not, subject to subsection 104(1)
(continuation of custody), exceed four years from the date of committal, and
(B) a placement under conditional supervision
to be served in the community in accordance with section 105;
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q) l’imposition par ordonnance :
…
(ii) dans le cas d’un meurtre au deuxième
degré, d’une peine maximale de sept ans consistant, d’une part, en une
mesure de placement sous garde, exécutée de façon continue, pour une période
maximale de quatre ans à compter de sa mise à exécution, sous réserve du
paragraphe 104(1) (prolongation de la garde), et, d’autre part, en la mise en
liberté sous condition au sein de la collectivité conformément à l’article
105;
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89. (1) When a
young person is twenty years old or older at the time the youth sentence is
imposed on him or her under paragraph 42(2)(n), (o), (q)
or (r), the young person shall, despite section 85, be committed to
a provincial correctional facility for adults to serve the youth sentence.
…
(3) If a young person is serving a youth
sentence in a provincial correctional facility for adults or a penitentiary
under subsection (1) or (2), the Prisons and Reformatories Act and the
Corrections and Conditional Release Act, and any other statute, regulation or
rule applicable in respect of prisoners or offenders within the meaning of
those Acts, statutes, regulations and rules, apply in respect of the young
person except to the extent that they conflict with Part 6 (publication,
records and information) of this Act, which Part continues to apply to the
young person.
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89. (1) L’adolescent
âgé de vingt ans ou plus au moment où une peine spécifique lui est imposée
en vertu des alinéas 42(2)n), o), q) ou r) doit, malgré l’article 85, être
détenu dans un établissement correctionnel provincial pour adultes pour y
purger sa peine.
…
(3) Les lois — notamment la Loi sur le
système correctionnel et la mise en liberté sous condition et la Loi sur les
prisons et les maisons de correction — , règlements et autres règles de droit
régissant les prisonniers ou les délinquants au sens de ces lois, règlements
ou autres règles de droit s’appliquent à l’adolescent qui purge sa peine dans
un établissement correctionnel provincial pour adultes ou un pénitentier au
titre des paragraphes (1) ou (2), dans la mesure où ils ne sont pas
incompatibles avec la partie 6 (dossiers et confidentialité des
renseignements) de la présente loi, qui continue de s’appliquer à
l’adolescent.
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91. (1) The provincial director of a province may, subject to any terms or
conditions that he or she considers desirable, authorize, for a young person
committed to a youth custody facility in the province further to an order
under paragraph 76(1)(a) (placement when subject to adult sentence) or a
youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r),
(a) a reintegration leave from the youth
custody facility for a period not exceeding thirty days if, in the opinion of
the provincial director, it is necessary or desirable that the young person
be absent, with or without escort, for medical, compassionate or humanitarian
reasons or for the purpose of rehabilitating the young person or reintegrating
the young person into the community; or
(b) that the young person be released from
the youth custody facility on the days and during the hours that the
provincial director specifies in order that the young person may
(i) attend school or any other educational or
training institution,
(ii) obtain or continue employment or perform
domestic or other duties required by the young person’s family,
(iii) participate in a program specified by
the provincial director that, in the provincial director’s opinion, will
enable the young person to better carry out employment or improve his or her
education or training, or
(iv) attend an out-patient treatment program
or other program that provides services that are suitable to addressing the
young person’s needs.
104. (1) When a young person on whom a youth sentence under paragraph 42(2)(o),
(q) or (r) has been imposed is held in custody and an
application is made to the youth justice court by the Attorney General,
within a reasonable time before the expiry of the custodial portion of the
youth sentence, the provincial director of the province in which the young
person is held in custody shall cause the young person to be brought before
the youth justice court and the youth justice court may, after giving both parties
and a parent of the young person an opportunity to be heard and if it is
satisfied that there are reasonable grounds to believe that the young person
is likely to commit an offence causing the death of or serious harm to
another person before the expiry of the youth sentence the young person is
then serving, order that the young person remain in custody for a period not
exceeding the remainder of the youth sentence.
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91. (1) Le directeur provincial d’une province peut, selon
les modalités qu’il juge indiquées, autoriser à l’égard de l’adolescent placé
dans un lieu de garde de la province en exécution d’une ordonnance rendue en
application de l’alinéa 76(1)a) (placement en cas de peine applicable aux
adultes) ou d’une peine spécifique imposée au titre des alinéas 42(2)n), o),
q) ou r) :
a) ou bien un congé pour une période maximale
de trente jours, si, à son avis, il est nécessaire ou souhaitable que
l’adolescent s’absente, accompagné ou non, soit pour des raisons médicales,
humanitaires ou de compassion, soit en vue de sa réadaptation ou de sa
réinsertion sociale;
b) ou bien la mise en liberté durant les
jours et les heures qu’il fixe, de manière que l’adolescent puisse, selon le
cas :
(i) fréquenter l’école ou tout autre
établissement d’enseignement ou de formation,
(ii) obtenir ou conserver un emploi ou
effectuer, pour sa famille, des travaux ménagers ou autres,
(iii) participer à un programme qu’il indique
et qui, à son avis, permettra à l’adolescent de mieux exercer les fonctions
de son poste ou d’accroître ses connaissances ou ses compétences,
(iv) suivre un traitement externe ou prendre
part à un autre type de programme offrant des services adaptés à ses besoins.
104. (1) Dans le cas où l’adolescent est tenu sous garde en
vertu d’une peine spécifique imposée en application des alinéas 42(2)o), q)
ou r) et où le procureur général présente une demande en ce sens au tribunal
pour adolescents dans un délai raisonnable avant l’expiration de la période
de garde, le directeur provincial de la province où l’adolescent est tenu
sous garde doit le faire amener devant le tribunal; celui-ci, après avoir
fourni aux parties et aux père ou mère de l’adolescent l’occasion de se faire
entendre, peut, s’il est convaincu qu’il existe des motifs raisonnables de croire
que l’adolescent commettra vraisemblablement, avant l’expiration de sa peine,
une infraction causant la mort ou un dommage grave à autrui, ordonner son
maintien sous garde pour une période n’excédant pas le reste de sa peine.
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(2) If the hearing of an application under
subsection (1) cannot be completed before the expiry of the custodial portion
of the youth sentence, the court may order that the young person remain in
custody until the determination of the application if the court is satisfied
that the application was made in a reasonable time, having regard to all the
circumstances, and that there are compelling reasons for keeping the young
person in custody.
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(2) S’il ne peut décider de la demande avant
l’expiration de la période de garde, le tribunal peut, s’il est convaincu que
la demande a été présentée dans un délai raisonnable, compte tenu de toutes
les circonstances, et qu’il existe des motifs impérieux pour la prise de
cette mesure, ordonner le maintien sous garde de l’adolescent jusqu’à l’aboutissement
de la demande.
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The Federal Court Decision
[20]
Because I am
of the view that Mosley J. (hereinafter “the Judge”) made no error which would
allow us to intervene, I will set out at length the reasons which led him to
conclude as he did.
[21]
First, the
Judge dealt with the standard of review. He referred to the Supreme Court of
Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, and to its more
recent decision in Canada (Citizenship and Immigration)
v. Khosa,
2009 SCC 12, and concluded that the applicable standard with regard to the
interpretation of the CCRA and the YCJA was that of correctness.
At paragraph 15 of his Reasons, he wrote as follows:
[15] Here,
the Board interpreted its “home statute” (the CCRA) and a related statute (the
YCJA) but the questions at issue in these proceedings have not arisen in the
context of the Board’s usual administrative regime respecting the grant of
parole to adult offenders. In the particular circumstances in which this
application has been brought, I have no reason to believe that the Board has
any greater degree of expertise than the Court in construing the interplay
between the two statutes. The questions of law that arise may be considered to
be of significant importance to the youth justice system and outside the
Board’s expertise. Accordingly, I am satisfied that the Board’s decision does
not require deference and that I must be concerned with whether the Board
correctly interpreted the applicable legislation in its calculation of J.P.’s
parole eligibility.
[22]
The Judge then
turned to the issue of whether the term “sentence”, found in the subsections
119(1), 120(1) and 128(1) of the CCRA, is a reference to the custodial
portion only of a custody and supervision order under the YCJA or a
reference to both the custody and supervision portions of the order for the
purpose of calculating parole eligibility.
[23]
The Judge
began by reviewing the parties’ submissions. He then proceeded to review the
purpose of the YCJA and its relevant provisions. He stated at paragraph
29 that the purpose of the statute was to render young persons accountable for
offences through the imposition of just sanctions that have meaningful
consequences for such persons and to promote their rehabilitation into society,
thus, contributing to the protection of the public (see section 38 of the YCJA).
[24]
The Judge
then pointed out that in the case of a conviction for second degree murder, the
youth justice court was bound to sentence the young person to a term not to
exceed seven years, comprised of a committal to custody for a period not
exceeding four years and a placement under conditional supervision to be served
in the community (see subparagraph 42(2)(q)(ii) of the YCJA).
[25]
The Judge
indicated that while the seven-year term was fixed and that a supervision term
was a mandatory component of the sentence, it was possible to vary the manner
in which the custodial and non-custodial portions were to be served. In this
regard, the Judge gave as an example subsection 104(1) of the YCJA,
which provides that if the youth justice court is satisfied that there are
reasonable grounds to believe that a young person will likely cause the death
of or serious harm to another person before the expiry of his youth sentence,
the court may order that the young person remain in custody for a period not to
exceed the remainder of his youth sentence.
[26]
The Judge
also pointed out that because the respondent was over the age of 20 when he was
sentenced, he was required to serve the custody portion of his youth sentence in
a provincial correctional facility for adults (see. subsection 89(1) of the YCJA).
This led him to observe that the CCRA, the Prisons and Reformatories Act,
R.S., 1985, c. P-20 (the “PRA”), and any other statute, regulation or
rule applicable to prisoners or offenders, within the meaning of those acts,
statutes, regulations or rules, applied to young persons, except where there
was a conflict with Part VI (Publication, Record and Information) of the YCJA
(see subsection 89(3) of the YCJA).
[27]
The Judge
then turned to Part II of the CCRA, which governs the conditional
release, supervision and long-term supervision of offenders serving their
sentence in an adult facility. In particular, the Judge referred to sections
119 and 120 of the CCRA, which provide that an offender will be eligible
for full parole after serving the lesser of 1/3 of his sentence or 7 years and
that he will be eligible for day parole after having served the greater of a
period ending six months before the date on which he is entitled to full parole
and six months. This observation led him to opine that “[e]ligibility for day
parole will necessarily depend upon eligibility for full parole” (see paragraph
34 of his Reasons).
[28]
The Judge
then turned to the main issue before him, which he formulated as follows at
paragraph 35 of his Reasons:
[35] The
issue at bar turns on the correct interpretation of “sentence” within the
meaning of these provisions. The applicant’s position is that only the 22-month
custodial portion of his sentence can be considered “the sentence” for the
purpose of calculating parole eligibility. The respondent argues that parole
eligibility is based on an offender’s total sentence, which in the applicant’s
case is 58 months.
[29]
He began
his treatment of the issue by stating that, at first glance, the meaning of the
word “sentence” found in the section 2 definition of the CCRA appeared
to refer to both the custodial and supervisory components of the youth sentence
imposed under the YCJA, which sentence included the sentence imposed on
the respondent under section 42 thereof.
[30]
However, the
Judge undertook a contextual interpretation of the relevant provisions, as
required by the Supreme Court’s decision in Rizzo and Rizzo Shoes Ltd. (Re.),
[1988] 1 S.C.R. 27, wherein the Supreme Court adopted the point of view
enunciated by Professor Elmer A. Driedger in his The Construction of
Statutes (Toronto: Butterworth, 1974) (the “The Construction of Statutes”),
at 67, where he said:
The words of
an Act are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act
and the intention of Parliament.
[31]
In
conducting a contextual interpretation, the Judge referred to paragraph 83(2)(e)
of the YCJA, which provides that young persons, when treated as adults,
are not to be disadvantaged “with respect to their eligibility for and
conditions of release”. The Judge then observed that the respondent, having
been placed in an adult facility, was not to be disadvantaged “in the calculation
of his sentence to determine his eligibility for release” (paragraph 42 of his
Reasons).
[32]
The Judge
then opined that the meaning of the word “sentence”, found in sections 119 and
120 of the CCRA, could be inferred from a conceptual and purposive
interpretation of the parole scheme found in the CCRA. He indicated that
parole was a discretionary form of conditional release whereby offenders were
allowed to serve the balance of their sentence outside of a correctional
facility, under supervision and specific conditions, adding that parole
therefore could not “attach to a sanction-like portion thereof that is already
ordered to be served in the community, such as the conditional supervision
portion of a sentence under subparagraph 42(2)(q)(ii) of the YCJA”
(paragraph 43 of his Reasons).
[33]
The Judge
then referred to the definition of the word “sentence” found at subsection 2(1)
of the CCRA, which, for ease of reference, I again reproduce:
2. (1) "sentence" means a sentence of imprisonment and includes
a sentence imposed by a foreign entity on a Canadian offender who has been
transferred to Canada under the International Transfer of Offenders Act
and a youth sentence imposed under the Youth Criminal Justice Act;
|
2. (1) « peine » ou « peine d’emprisonnement » S’entend
notamment d’une peine spécifique imposée en vertu de la Loi sur le système
de justice pénale pour les adolescents et d’une peine
d’emprisonnement imposée par une entité étrangère à un Canadien qui a été
transféré au Canada sous le régime de la Loi sur le transfèrement
international des délinquants.
|
[34]
The Judge pointed out
that the definition used the verbs “means” and “includes”, which led him to
refer with approval to Hansen J.’s decision in Hrushka c. Canada (Minister
of Foreign Affairs), 2009 FC 69, where she wrote at paragraph at 16 of her
Reasons:
Second, the Respondent’s
argument runs contrary to the use and purpose of statutory definitions and
recognized drafting conventions. As stated in Sullivan and Drieger on the Construction
of Statutes, [Ruth Sullivan, Sullivan and Drieger on the Construction of
Statutes (Vancouver: Butterworths, 2002),
p. 51.] there are two kinds of statutory definitions, exhaustive and
non-exhaustive. Exhaustive definitions are normally introduced with the
term “means” and serve the following purposes: “to clarify a vague or
ambiguous term; to narrow the scope of a word or expression; to ensure that the
scope of a word or expression is not narrowed; and to create an abbreviation or
other concise form of reference to a lengthy expression.” Non-exhaustive
definitions are normally introduced by the word “includes” and serve “to expand
the ordinary meaning of a word or expression; to deal with borderline
applications; and to illustrate the application of a word or expression by
setting examples.” Thus, it can be seen that a statutory definition does not
typically have substantive content. Indeed, the inclusion of substantive
content in a definition is viewed as a drafting error. As stated by Francis
Bennion in Statutory Interpretation:
Definitions with
substantive effect It is a drafting error (less frequent now than formerly) to
incorporate a substantive enactment in a definition. A definition is not
expected to have operative effect as an independent enactment. If it is worded
in that way, the courts will tend to construe it restrictively and confine it
to the proper function of a definition.
[Emphasis
added]
[35]
Adopting Hansen J.’s
point of view led the Judge to opine that the expression “means a sentence of
imprisonment” narrowed the scope of the term “sentence” to one of incarceration
(paragraph 47 of his Reasons). As a result, it was his view that the only
portion of the youth sentence under the YCJA included in the “sentence”
under the CCRA was the custodial portion thereof. At paragraph 49 of his
Reasons, the Judge wrote as follows:
[49] The term “youth
sentence” as defined under section 2 of the YCJA applies to a broad range of
possible sentence dispositions that may be imposed. Youth sentences which
involve custody will have a non-custodial portion. The inclusion of the term
“youth sentence” in the definition of “sentence” in the CCRA is intended solely
to ensure that the conditional release provisions of the CCRA are available to
offenders serving the custodial portion of their youth sentences in adult
facilities. Thus the definition has to read as referring to the custodial
portion and not to the community supervision portion.
[36]
Finally, the Judge
turned to section 742.1 of the Criminal Code and noted that according to
that section, “conditional sentence of imprisonment” was a “sentence of imprisonment”
which an offender served in the community in lieu of in an institution. He then
pointed out that in R. v. Proulx, [2000] 1 S.C.R. 61, the Supreme Court
of Canada opined that parole did not apply to a conditional sentence of
imprisonment by reason of the fact that under such a sentence, an offender was
not incarcerated and therefore there was no need for reintegration into society
[see paragraph 43 of R. v. Proulx, supra]. This led the Judge to state
that, in the same way, “parole cannot be granted to … a young offender who has
already been conditionally released.” (see paragraph 50 of the Judge’s
Reasons).
[37]
The Judge then
further remarked that the supervision portion of the youth sentence under the YCJA
was “an alternative to detention and is intended to be served in the community”.
Recognizing that a young person’s period of custody could be extended under
section 98 of the YCJA and that the young person could be remanded into
custody under section 102 of the YCJA for breach of conditions, the
Judge indicated that these were “exceptional procedures” (see paragraph 51 of
the Judge’s Reasons), which did not detract from the principle that the young person’s
reintegration into the community was a fundamental element of a custodial
sentence under the YCJA.
[38]
The Judge then turned
to the second issue before him, namely, does the Board’s authority over a young
person serving a youth sentence in an adult facility terminate upon the expiry
of the young person’s period of custody?
[39]
The Judge began by
noting that the respondent was seeking a declaration that the Board’s authority
over him terminated at the end of his 22-month period of custody. He also took
note of the respondent’s submission that if full parole was granted to the respondent
by the Board and that the respondent remained on full parole at the end of his
period of custody, the Board would continue to exercise jurisdiction over him
for the balance of his youth sentence, i.e. for the remainder of the 58-month
sentence.
[40]
The Judge then
pointed out that by reason of subsection 89(3) of the YCJA, the CCRA
and the PRA applied to a young person who was serving a youth sentence
in an adult facility, adding that it was unclear whether youth justice
principles ceased to apply. In support of that view, he referred to the decision
of Duncan J. of the Ontario Court of Justice in R. v. C.K., 2008 ONCJ
236, (2008), 233 C.C.C. (3d) 194 (Ont. C.J.), who, at paragraph 18 of his
Reasons, made the following remarks:
An offender serving a
youth sentence who enters or is transferred to an adult facility enters a legal
no man’s land.
The YOA [Youth Offenders Act, R.S. 1985, c. &-1, repealed in 2002
and replaced by the YCJA ] provided for discretionary transfer at the
age of 18 but made it clear that “the provisions of this Act shall continue to
apply in respect of that person” (s. 24.5 of the YOA). The YCJA contains no
such provision. Nor does it specifically state the opposite – that the youth
statute or any parts of the sections of it cease to apply. As a consequence
it is not clear whether the Act or principles of youth justice apply or whether
a transferred youth is even entitled to a review.
[Emphasis
added]
[41]
The issue before Duncan in R. v. C.K., supra, was whether the review
provisions set out at section 94 of the YCJA applied to a young person
serving a sentence in an adult facility. Mr. Justice Duncan concluded that they
applied.
[42]
After reviewing Duncan
J.’s Reasons, the Judge pointed out at paragraph 61 of his Reasons that Mr.
Justice Duncan had concluded that the principles found in the YCJA
continued to apply to young persons who were serving the custodial portion of
their youth sentence in an adult facility, adding that in Mr. Justice Duncan’s
view, the adult facility was bound to accommodate the young person in a way
that complied with the principles of youth criminal justice.
[43]
The Judge then turned
to the facts before him and made the following statement at paragraphs 62 and
63 of his Reasons:
[62] In the case at
bar, the Board’s initial reasons for refusing day parole to the applicant state
that “if released on his eligibility date, he would be subject to the terms and
conditions of his Full Parole through to his warrant expiry date 2013/01/06”.
Such a statement has significant implications. Most importantly, it means that
the terms and conditions of parole set by the Board would apply for the
remainder of the applicant’s youth sentence. It is not clear how this would be
reconciled with the supervision principles under the YCJA and the conditions
imposed by the sentencing judge. It is also unclear how the Board, which is
accustomed to dealing with adult offenders, would accommodate YCJA principles
in supervising this offender.
[63] An aspect of
the legislative scheme that supports the respondent’s position that Parliament
intended that the Board would have jurisdiction until the end of the offender’s
sentence, is that, as discussed above, the custodial portion of the sentence
could in exceptional circumstances be extended to “warrant expiry”. In that
situation, the offender would continue to be detained (or returned to custody
following a review in the case of a breach of his conditions), in an adult correctional
facility and would remain within the scope of the CCRA and the Board’s
jurisdiction.
[44]
This led the Judge to
conclude that unless a decision was made to continue a young person’s custody
period or to return him to custody for the balance of his youth sentence, the
Board’s jurisdiction over the young person terminated at the end of the
custodial period because the young person could no longer be detained under the
terms of his youth sentence. The Judge opined that such a scenario did not lead
to “a jurisdictional void” because the young person would necessarily remain
under the supervision of the provincial director and the youth court which had
sentenced him.
Analysis
[45]
At the outset, a few
words should be said about the standard of review. Although neither party made
any submissions in their Memoranda of Fact and Law regarding the standard of
review, it is implicit in their submissions that they do not dispute the
Judge’s conclusion that the applicable standard is that of correctness. Because
I am satisfied that there is only one reasonable interpretation of the statutes
at issue, I need not address the question 1/of whether deference to the Board
was required in the present matter.
[46]
The appellant makes a
number of submissions as to why we should intervene. First, he takes issue with
paragraph 43 of the Judge’s Reasons, where the Judge states that parole cannot
apply “to a sanction or a portion thereof that is already ordered to be served
in the community”. To do justice to the appellant’s arguments, I will quote in
full paragraphs 46 and 47 of his Memorandum of Fact and Law:
46. To the extent
that the lower court in making that statement means that parole is unnecessary,
as an avenue of recourse, while an offender is otherwise on release pursuant to
statute or court order during his criminal sentence, the Appellant agrees.
47. If however, as
it appears from its jurisdictional findings, the lower court also means that
parole cannot exist or an offender cannot be on parole during the period he would
otherwise be entitled by statute or court order to be on release during his
sentence of imprisonment, the Appellant says the lower court is in error.
Clearly, an individual who is granted parole and remains on parole as of the
date he would otherwise be entitled to release by statute or court order,
remains on parole until revoked or until the expiration of his sentence.
[47]
These remarks lead
the appellant to argue that the Judge’s inference that the supervisory portion
of the respondent’s youth sentence is excluded from the calculation of his
parole eligibility is also an error on his part. In the appellant’s submission,
the above inference is not in accordance with principles of statutory
interpretation in that it fails to distinguish between entitlement to release
and a discretionary grant of release (parole) and it fails to give effect to
Parliament’s intention that release or eligibility for release be both
calculated by reference to the entire length of the criminal sentence, whether
the offender be an adult or a young person.
[48]
The appellant further
argues that the Judge’s error results from his reluctance to recognize that the
“sanction” imposed under paragraph 42(2)(q)(ii) of the YCJA
constitutes a “single sanction” and not separate sanctions. In other words, the
Judge treated the sentence imposed on the respondent as two sentences rather
than one.
[49]
The appellant’s next
submission challenges the Judge’s reliance on Hanson J.’s decision in Hrushka,
supra, where she dealt with the meaning of the words “means” and
“includes”, words found in the CCRA’s section 2 definition of the word
“sentence”. The Judge concluded, as I have already indicated, that the word
“sentence” meant “sentence of imprisonment” and, as a result, that the youth
sentence imposed under the YCJA meant the custodial portion thereof
only.
[50]
In the appellant’s
view, the Judge’s interpretation of the word “sentence”, found in section 2 of
the CCRA, constitutes an unwarranted “reading down” of the legislation. The
Judge’s interpretation of the provision does not accord with the principle of
statutory interpretation that the words are to be read in their entire context
and in their grammatical and ordinary sense harmoniously with the scheme of the
Act and the intention of Parliament.
[51]
At paragraphs 78 to
81 of his Memorandum of Fact and Law, the appellant summarizes his position in
the following terms:
78. The definition
of “sentence” by virtue of s. 99 of the CCRA has the same meaning as
that attributed to the term under s. 2 of the CCRA. The applicable
definition is:
“sentence” means a
sentence of imprisonment and includes a sentence imposed by a foreign entity on
a Canadian offender who has been transferred to Canada under the International Transfer of
Offenders Act and a youth sentence imposed under the Youth Criminal
Justice Act.
79. The definition
of “sentence” is clear and unambiguous. Sentence means sentence and includes a
“youth sentence” imposed pursuant to the terms of the YCJA. In turn,
“youth sentence”, in the context of s. 2 of the CCRA, includes and is,
in fact, limited to a sentence imposed under s. 42(2)(n), (o), (q) or (r) of
the YCJA.
80. Section 42(2)(q)
of the YCJA does not parse a sentence comprised of a period of
supervision and a period of custody into a sentence of custody and a sentence
of supervision.
81. The provisions
of the YCJA cited above lead to no other conclusion that the period of
custody and the period of conditional supervision in the community constitute a
single sanction meeting the definition of “sentence” prescribed by Parliament
for the purpose of calculating parole eligibility.
[52]
The appellant also
submits that the Judge erred in determining the Board’s jurisdiction over the
respondent. He reiterates the argument which he made before the Judge with
respect to the Board’s jurisdiction. If the Board grants the respondent full
parole and he therefore remains on full parole at the time the custodial
portion of his sentence terminates, the Board continues to exercise
jurisdiction over him for the remainder of his youth sentence, i.e. the 26
months of supervision. For this submission, the appellant relies, inter alia,
on subsection 89(3) of the YCJA which provides for the application of
the CCRA and the PRA to young offenders transferred to adult
facilities.
[53]
As a result, the
appellant says that the Judge fell into error in concluding that the Board’s
jurisdiction expired when the applicant was “no longer required to be detained
under the terms of the custodial portion of his sentence” (paragraph 64 of the
Judge’s Reasons).
[54]
I now turn to the
issue of interpretation. The parties submit, as they must, that the meaning of
the word “sentence” must be determined by reading the word “in [its] entire
context and in [its] grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act and the intention of Parliament” (see The
Construction of Statutes, supra, at 67). I therefore turn to that task.
[55]
To begin with, it is
important to note that the definition of “sentence” found in subsection 2(1) of
the CCRA says that it “means a sentence of imprisonment and includes … a
youth sentence imposed under the Youth Criminal Justice Act”. The
appellant argues that the reference to a youth sentence imposed under the YCJA
can mean nothing but the entire sentence, i.e. the custodial and supervision
components of the youth sentence. The respondent, on the other hand, says that
such reference can only be to the custodial portion of the youth sentence.
[56]
I now turn to
context. More particularly, I turn to the scheme and object of both the YCJA
and the CCRA and to Parliament’s intention.
[57]
The difficulty which
arises in this case stems from the fact that Parliament decided that young
persons, aged 20 or older, should serve their period of custody in an adult
facility (subsection 89(1) of the YCJA) and that while detained therein,
the CCRA and the PRA will apply to them.
[58]
Thus, for example, the
possibility of reintegration leave or release during the period of custody
provided by subsection 91(1) of the YCJA is not available to young
persons committed to an adult facility, as the provincial director’s authority
to grant to young persons either reintegration leave or release is limited to
young persons detained in a youth custody facility. However, through subsection
83(2) of the YCJA, Parliament also decided that young persons committed
to an adult facility were not to be disadvantaged “with respect to the
eligibility for and conditions of release”.
[59]
This leads me to
observe that although Parliament could have achieved the purpose set out at
subsection 83(2) by granting the provincial director authority over young
persons committed to an adult facility, it chose not to do so. Rather, it
directed that the existing scheme for release from custody, found in the CCRA
and the PRA, would be available to such young persons.
[60]
The respondent
submits, and I agree with him, that by choosing this course of action,
Parliament exempted young persons from a major disadvantage that would have
resulted by reason of their committal to an adult facility. Thus, prison and
penitentiary authorities are not obliged to apply a different legislative
scheme to young persons within their jurisdiction and the difficulty inherent
in the application of different legislative schemes for release from custody
for young persons and adult offenders is avoided.
[61]
I note that the provincial
director’s authority in regard to reintegration leave and release during the
course of a young person’s custodial period does not apply to a young person’s
period of supervision, in the same way that the parole scheme only applies to
an adult offender’s committal to custody.
[62]
Subsection 89(1) of
the YCJA provides that a young person, aged 20 or older, must be sent to
an adult facility to serve his period of custody. It is therefore my view that
that period is the only period to which, pursuant to subsection 89(3) of the YCJA,
the CCRA and the PRA are directed by Parliament to apply. Thus,
it necessarily follows that the parole scheme of the CCRA can only be
concerned with a young person’s period of custody to the exclusion of his
period of supervision.
[63]
Consequently,
although I found the appellant’s argument regarding the unity of the youth
sentence under the YCJA initially attractive, I do not see any merit in
it given the wording of the CCRA and the YCJA. Even if it is true
that a sentence imposed under subparagraph 42(2)(q)(iii) of the YCJA
is a “single sanction”, only the custody portion thereof constitutes a
“sentence of imprisonment”.
I also do not see any merit in the distinction which the appellant seeks to
make between entitlement to release and the actual grant of release, i.e.
parole. This argument is simply another way of putting forward the proposition
that the youth sentence under the YCJA is one sentence only and not a
sentence broken into two components.
[64]
I note that
subsection 2(1) of the YCJA defines the expression “custodial portion”
of a youth sentence imposed under paragraphs 42(2)(n), (o), (q) or (r)
as “the period of time, or the portion of the young person’s youth sentence
that must be served in custody before he or she begins to serve the remainder
under supervision in the community …”.
[65]
Thus, when subsection
89(3) of the YCJA and the definition of “sentence” found at subsection
2(1) of the CCRA, which incorporates a youth sentence within its
meaning, are read together, it is my opinion that a youth sentence within the
meaning of the definition can only be the custody period thereof. Hence, the
reference to “youth sentence” in subsection 2(1) of the CCRA can only be
directed to that portion of the youth sentence to which subsections 89(1) and
89(3) of the YCJA find application, i.e. a young person’s period of
custody.
[66]
It is of interest to
note that the French version of paragraph 119(1)(c) of the CCRA
uses the expression “dans le cas du délinquent qui purge une peine
d’emprisonnement …” to translate the words “where the offender is serving a
sentence …”. This meaning (in the French version) is the one which is clearly
envisaged by the definition of “sentence” in subsection 2(1) of the CCRA
when it makes clear that a “sentence” is a sentence of imprisonment.
[67]
It is therefore my view
that the Judge was correct in holding that the words “means a sentence of
imprisonment” found in subsection 2(1) of the CCRA narrowed the scope of
the word “sentence” to one of incarceration. I am satisfied that that is the
only conclusion possible, taking into account the scheme of the Act, the object
of the Act and Parliament’s intention.
[68]
The conclusion which the
Judge reached, with which I agree, is also consistent with the scheme and
object of parole, in that there can be no doubt that the parole scheme finds
application only insofar as an offender is committed to custody.
[69]
In R. v. Proulx,
supra, the Supreme Court held that the parole scheme did not apply to an
offender serving a conditional sentence in the community. In its view, that
approach was inconsistent with the scheme and object of parole because the
offender, at that point in time, was not incarcerated and thus did not need to
be reintegrated into society. At paragraphs 42 and 43, Chief Justice Lamer
wrote as follows:
42. Moreover, the
conditional sentence is not subject to reduction through parole.
This would seem to
follow from s. 112(1) of the Corrections and Conditional Release
Act, S.C. 1992, c. 20,
which gives the provincial parole board jurisdiction in respect of
the parole of offenders
“serving sentences of imprisonment in provincial correctional
facilities” (R. v.
Wismayer (1997), 115 C.C.C. (3d) 18 (Ont. C.A.), at p. 33).
43. I would add
that the fact that a conditional sentence cannot be reduced through
parole does not in
itself lead to the conclusion that as a general matter a conditional
sentence is as onerous
as or even more onerous than a jail term of equivalent duration.
There is no parole
simply because the offender is never actually incarcerated and he or
she does not need to be
reintegrated into society. But even when an offender is released
from custody on parole,
the original sentence continues in force. As I stated in M.
(C.A.), supra, at para. 62:
In short, the history,
structure and existing practice of the conditional release system collectively
indicate that a grant of parole represents a change in the conditions
under which a judicial sentence must be served, rather than a reduction
of the judicial sentence itself. . . . But even though the conditions of incarceration
are subject to change through a grant of parole to the offender’s benefit, the
offender’s sentence continues in full effect. The offender remains under the
strict control of the parole system, and the offender’s liberty remains significantly
curtailed for the full duration of the offender’s numerical or life sentence.
[Emphasis in original.]
The parolee has to serve
the final portion of his or her sentence under conditions similar
to those that can be
imposed under a conditional sentence, perhaps even under stricter
conditions, as the
parolee can be assigned to a “community-based residential facility”:
see s. 133 of the Corrections
and Conditional Release Act and s. 161 of the Corrections
and Conditional Release
Regulations,
SOR&92-620.
[70]
Thus, if the parole
scheme does not apply to an adult conditional sentence served in the community,
which section 742.1 of the Criminal Code defines as a “sentence of
imprisonment”, it must follow that the supervisory period of a young person’s
youth sentence, which clearly is not a sentence of imprisonment, cannot be
subject to the parole scheme.
[71]
In concluding on this
point, I would like to briefly address the submissions made by the appellant regarding
the consequences of the Judge’s decision. The appellant says that the Judge’s
decision creates a distinction between the youth criminal justice system and the
adult criminal justice system that was neither intended by Parliament, nor
warranted. The appellant also says that by reason of the Judge’s decision, the period
that individuals in situations similar to those of the respondent must wait
before being considered for parole will be reduced and that the decision creates
an incentive for young persons to be transferred to adult correctional
facilities, contrary to the principles of the youth criminal justice system.
[72]
First, it is clear
that it is not the Judge’s decision that creates a distinction between the
youth and the adult criminal justice systems. If a distinction exists, it is
the result of the existing legislation, the YCJA, which, inter alia,
provides at paragraph 3(1)(b) that one of the guiding principles of the
Act is that “the criminal justice system for young persons must be separate
from that of adults” and that it must emphasize, inter alia,
rehabilitation and reintegration. In that regard, the words of Mr. Justice Fish
of the Supreme Court of Canada in R. v. R.C., [2005] 3 S.C.R. 99, at
paragraph 41, are apposite:
[41] In creating a
separate criminal justice system for young persons, Parliament has recognized
the heightened vulnerability and reduced maturity of young persons. In keeping
with its international obligations, Parliament has sought as well to extend to
young offenders enhanced procedural protections, and to interfere with their
personal freedom and privacy as little as possible: see the United Nations
Convention on the Rights of the Child, Can. T.S. 1992 No. 3, incorporated
by reference in the YCJA.
[73]
Second, the
appellant’s suggestion that individuals such as the respondent will spend less
time in detention before being paroled appears to be premised on a comparison
of young persons detained in an adult facility to other inmates (adult) in that
same facility. The fact of the matter is that young persons do not cease to be
“a young person” within the meaning of the YCJA, because they are being
held in an adult facility. They are still young persons serving a youth
sentence within the meaning of subsection 2(1) of the YCJA.
[74]
The better comparison
is one between young persons detained in an adult facility and young persons who
are being held in a youth facility. In keeping with paragraph 83(2)(e) of
the YCJA, the former should not be disadvantaged on the basis of the
location where they are being held in custody.
[75]
The appellant also
suggests that the Judge’s decision creates an incentive for young persons to be
transferred to an adult facility. In that regard, the appellant says that a
youth held in a youth facility is only eligible for review after 12 months,
pursuant to section 94 of the YCJA, while a young person, such as the
respondent, would be eligible for parole after only seven months. There does
not appear to be any basis for the appellant’s assertion. The application of
section 94 of the YCJA is not limited to young persons held in a youth
facility. Rather, it applies to all young persons, including those committed to
custody in an adult facility. Consequently, the respondent was entitled to and
did receive a review under section 94 of the YCJA. Moreover, as I have
already indicated, only young persons held in youth facilities get the benefit
of subsection 91(1) of the YCJA which provides for reintegration leave
and various other forms of leave which can be authorized by the provincial director.
[76]
I have not been
persuaded that the Judge’s decision creates an incentive for young persons to
be transferred to an adult facility or that it reduces the period of custody
that individuals in circumstances similar to those of the respondent must wait
before being considered for parole. Both sides attempted to provide examples
which, in their view, demonstrated that their interpretation was the correct
one and that the other side’s interpretation led to an absurd result. I see no
useful purpose in dealing with these examples since I am satisfied that the
Judge reached the correct interpretation of the word “sentence”. If this
interpretation gives rise to problems of the type suggested by the appellant,
Parliament will no doubt be in a position to correct the matter by amending the
legislation.
[77]
I now turn to the second
and third issues before us which pertain to the Board’s jurisdiction over young
persons serving the custody portion of their youth sentence in an adult
facility.
[78]
The appellant submits
that the Judge’s decision confuses rather than clarifies the jurisdiction of
the Board within the youth criminal youth justice system. In particular, the
appellant says that the Judge’s finding that the Board does not have authority
over the respondent once the 22-month period of custody terminates is
inconsistent with his finding that the Board will resume jurisdiction if the
respondent is later recommitted during the conditional portion of his youth sentence.
[79]
To this, the respondent
replies that as a matter of principle, all orders of custody, as sentences of
imprisonment, should be treated similarly for the purposes of the CCRA.
Consequently, a young person recommitted to custody will have to reapply for
parole when eligible.
[80]
After consideration
of the parties’ respective arguments on this issue, the Judge concluded in the
following terms:
[64] Absent a
decision to continue custody or to return the offender to custody for the
remainder of the sentence, the Board’s jurisdiction expires, in my view, when
the applicant is no longer required to be detained under the terms of the
custodial portion of his sentence. This conclusion does not lead to a
jurisdictional void as he will remain under the supervision of the provincial
director and the sentencing court.
[81]
The appellant’s
submission that the Board should continue to exercise jurisdiction over the
respondent, even after the termination of his period of custody, is in conflict
with the principles of the YCJA. Indeed, section 89 of the YCJA
transfers the custodial portion of the youth sentence only to adult
correctional authorities or to the Board if parole is granted to the young
person. It necessarily follows, in my view, that once the custodial portion of
the sentence has been served or has come to an end, the youth court and the
provincial director retain their exclusive jurisdiction over the young person.
[82]
It is clear from the
Judge’s decision, particularly by reason of his reference to the decision of
Mr. Justice Duncan in R. v. C.K., supra, that he accepted the principle
that adult facilities were bound to accommodate a young person “in a way that
conforms to the principles of youth criminal justice” (see paragraph 61 of the
Judge’s Reasons). In my view, he also accepted that the boundary between the
youth justice system and the adult justice system had not been clearly
delineated by the existing legislation, but that the spirit and intent of the YCJA
required that the youth justice court and the provincial director retain
jurisdiction over a young offender upon termination of his or her period of
custody.
[83]
I have not been
persuaded that, in concluding as he did, the Judge made any reviewable error.
On the contrary, I am satisfied that his conclusion is the correct one.
Consequently, as the Judge found, the jurisdiction of the provincial director
and of the youth justice court over the respondent will resume once the custody
portion of the youth sentence expires. Subsections 6(7.2) and 6(7.3) of the PRA
provide support for that point of view. These provisions address the “effect of
release” on a young person who has been transferred to an adult facility and
read as follows:
6. (7.2) When a prisoner who was sentenced to
custody under paragraph 42(2)(o), (q) or (r) of the Youth Criminal Justice
Act is transferred from a youth custody facility to a prison under section 92
or 93 of that Act, or is committed to imprisonment in a prison under section
89 of that Act, the prisoner is entitled to be released on the earlier of
(a) the date on which the prisoner is entitled
to be released from imprisonment in accordance with subsection (5) of this
section, and
(b) the date on which the custody portion of
his or her youth sentence under paragraph 42(2)(o), (q) or (r) of the Youth
Criminal Justice Act expires.
(7.3) When a prisoner is committed or
transferred in accordance with section 89, 92 or 93 of the Youth Criminal
Justice Act and, in accordance with subsection (7.1) or (7.2) of this
section, is entitled to be released,
(a) if the sentence was imposed under
paragraph 42(2)(n) of that Act, sections 97 to 103 of that Act apply, with
any modifications that the circumstances require, with respect to the
remainder of his or her sentence; and
(b) if the sentence was imposed under
paragraph 42(2)(o), (q) or (r) of that Act, sections 104 to 109 of that Act
apply, with any modifications that the circumstances require, with respect to
the remainder of his or her sentence.
|
6. (7.2) Le prisonnier assujetti à une
peine spécifique consistant en une mesure de placement sous garde en
application des alinéas 42(2) o), q) ou r) de la Loi sur le système de
justice pénale pour les adolescents qui est transféré d'un lieu de garde à la
prison en vertu des articles 92 ou 93 de cette loi ou qui est condamné à la
prison en application de l'article 89 de cette loi, est admissible à la
libération à la date déterminée pour sa mise en liberté conformément au
paragraphe (5) ou, si elle est antérieure, à la date d'expiration de la
période de garde de la peine spécifique visée aux alinéas 42(2) o), q) ou r)
de cette loi.
(7.3) Le prisonnier
détenu ou transféré en application des articles 89, 92 ou 93 de la Loi sur le
système de justice pénale pour les adolescents et qui, en application des
paragraphes (7.1) ou (7.2), est admissible à la libération est assujetti :
a) si la peine est
imposée en application de l'alinéa 42(2) n) de la Loi sur le système de
justice pénale pour les adolescents, aux articles 97 à 103 de cette loi —
avec les adaptations nécessaires — en ce qui concerne le reste de la peine;
b) si la peine est
imposée en application des alinéas 42(2) o), q) ou r) de cette loi, aux
articles 104 à 109 de cette loi — avec les adaptations nécessaires — en ce
qui concerne le reste de la peine.
|
[84]
Subsection 6(7.2) of
the PRA provides that the date of release of a young person sentenced to
custody under, inter alia, paragraph 42(2)(q) of the YCJA
is the earlier of the date on which the young person is entitled to be
released, in accordance with subsection 6(5) of the PRA which deals with
the effect of remission, and the date on which the young person’s period of
custody under paragraph 42(2)(q) expires. As to subsection 6(7.3), it
provides that upon the release from custody of a young person, whose sentence
was imposed under, inter alia, paragraph 42(2)(q) of the YCJA,
and who was committed or transferred to an adult facility in accordance with, inter
alia, section 89 of the YCJA, sections 104 to 109 shall apply “to
the remainder of his or her sentence”.
[85]
In other words, upon
release from custody, a young person whose sentence was imposed under paragraph
42(2)(q) of the YCJA will be subject, pursuant to sections 104 to
109 of the YCJA, to the jurisdiction of the youth justice system
authorities, i.e. the youth sentence court and the provincial director of the
province in which the youth sentence was imposed. Thus, these provisions
support the view that the Board’s jurisdiction over young persons committed to
adult facilities, pursuant to subsection 89(3) of the YCJA, is at an end
when the custodial portion of their sentence terminates.
[86]
I therefore conclude
that the Judge made no error in concluding that the Board’s jurisdiction
expired when the respondent could no longer be detained under the terms of his
youth sentence. I also conclude that the Judge was correct in holding that the
Board would retain jurisdiction should the respondent’s custody be continued
until the end of the conditional supervision portion of his youth sentence or
should he be returned to custody for the remainder of his youth sentence by
order of the youth justice court. In such a scenario, the respondent would
necessarily be committed, pursuant to subsection 89(1) of the YCJA, to a
provincial correction facility for adults and, thus, pursuant to subsection
89(3), the CCRA and the PRA would find application. As a
consequence, the Board would have jurisdiction over the respondent.
[87]
For these reasons, I
would dismiss the appeal with costs.
“M. Nadon”
“I agree.
Pierre
Blais C.J.”
“I agree.
John
M. Evans J.A.”