Tessier v. Canada (Attorney General), 2004 FC 775

Date: 20040603

Docket: T-1672-02

Citation: 2004 FC 775

Toronto, Ontario, June 3^rd, 2004

Present:           The Honourable Mr. Justice Campbell

BETWEEN:

                                                            MICHAEL TESSIER

                                                                                                                                            Applicant

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                Almost two years ago, a panel of the National Parole Board (the "Board") denied the Applicant the opportunity to make an argument that he was entitled to "accelerated parole" under the provisions of the then and now current Corrections and Conditional Release Act, 1992, c.20 as amended, (the "Act") and Corrections and Conditional Release Act Regulations, SOR/92-620, (the "Regulations"). In the present application, the Applicant challenges that decision, but also argues that the provisions referred to worked to offend his s.7 rights under the Charter.

[2]                While the legal issues in the present case can have no present practical effect on the Applicant, and while I do have the discretion to refuse to hear this application since the Applicant did not exhaust his appeal rights before the Appeal Division of the National Parole Board (see Condo v. Canada, [2003] F.C.J. No. 310, 2003 FCA 99, Docket A-55-03), Counsel for the Respondent has not argued that the issues are moot, and I choose to exercise my discretion in rendering a decision.

[3]                For the reasons which follow, I find that the Board was correct in refusing to hear the argument and, while the Applicant's s.7 rights were engaged at that time, they were not breached.

A. Factual outline

[4]                On September 13, 2001, the Applicant was sentenced to 3 years and 10 months imprisonment for the offence of conspiracy to commit robbery which occurred on October 1, 1999. On December 24, 2001, amendments to the Act came into effect which had the effect of creating a more stringent standard for the granting of parole for persons serving a sentence for this offence. On September 6, 2002, the Applicant appeared before the Board to be considered for day parole and full parole. At that time, Counsel for the Applicant made a request of the Board to consider an argument that the Applicant should be considered for parole under the Act as it read before the amendments came into effect. The Board refused this request on the jurisdictional point that, since it had not received a referral on the issue of accelerated parole from the Corrections Service of Canada, it was not prepared to get involved in the issue.

B. The Accelerated Parole Review (APR) provisions in issue

[5]                The provisions which raise the Applicant's objection are ss.125 and 126 of the Act which read as follows:

[6]                The terms of s.102 referred to in s.126(2) are important to note:

[7]                Thus, reading s.102, together with ss.125 and 126, the tests for granting parole eligibility are as follows: by s.102, without qualifying for accelerated parole under ss.125 and 126, the test for granting parole is proof that an offender will not present "an undue risk to society"; however, under the accelerated parole provisions, by s.126(2), a first time offender can be released on accelerated parole, if not excluded by operation of s.125(1)(a), (b) or (c), on the less stringent test of absence of reasonable grounds to believe that, if released, he or she is likely to commit an offence involving violence.

[8]                The process for placing an Accelerated Parole Review before the Board is set out in s.159 of the Corrections and Conditional Release Regulations (the "Regulations"):

[9]                The Applicant's complaint is that, even though he was a first time offender, since he was sentenced on a Schedule 1 offence he was excluded from taking advantage of the accelerated parole provisions by operation of s.125(1)(a)(ii). It is agreed that, if the Applicant was not excluded, apart from the issue of the test to be met, he would have been considered for parole some three months earlier than, in fact, he was.

C. The Charter challenge

[10]            In his Notice of Constitutional Question dated February 4, 2003, the Applicant "questions the constitutional validity of S.C. 2001, c.41, s.94." The act cited is the Anti-Terrorism Act, and the provision cited amends the Corrections and Conditional Release Act to have s.125 read as cited above. As I understand it, at its essence, the Applicant's complaint is that the exclusion provisions in s.125, when read with s.126(2), are unfair in that they create a more stringent standard for parole for him. As a result, it is argued that the amending provision is invalid as it offends the Applicant's rights under s.7 of the Charter.

[11]            Section 7 of the Canadian Charter of Rights and Liberties, Constitution Act, 1982 reads as follows:

[12]            The content of the Applicant's complaint is as follows:

At the time the Applicant was sentenced the offence of which he was convicted was one that would not disqualify him from APR status. On December 24^th, 2001, The Parliament of Canada, via Bill C-36, changed the law, such that the commission of that offence would disqualify an offender from being considered an APR candidate. It is respectfully submitted that the Applicant and the state entered into an agreement whereby the Applicant would plead guilty and he would be sentenced according to the law; it is unfair for the state to now say: "We've changed our side of the bargain, you now have this sentence."

The Applicant argues that the law that governs his sentence is the law as it was when he committed the offence. The amendments that came about after that should not apply to him.

In the alternative, the Applicant argues that the law that governs is the law as it existed at the time of sentencing. (Applicant's Memorandum of Fact and Law, paras. 14, 15, and 16)

[13]            Section 125 of the Act stipulates that its provisions apply to person's who are sentenced. Therefore, if s.125 survives the Charter challenge, the argument just quoted fails.

1. The arguments

[14]            With respect to the question, the Applicant makes the following argument:

The Applicant submits that the amendment of the CCRA was a substantive change in the law and not a procedural change. As such a substantive change in the law the amendment to the CCRA is contrary to the principles of fundamental justice.

Further the Applicant respectfully submits that he has suffered a deprivation of liberty sufficiently serious to warrant Charter protection. The Applicant submits that amendments to the CCRA changes his sentence beyond a mere change in how his sentence is to served but constitutes a fundamental change in the sentence itself such that the change is contrary to the principles of fundamental justice. (Applicant's Memorandum of Fact and Law, paras. 17 and 18)

[15]            In response, Counsel for the Respondent argues that Chief Justice McLachlin's decision in Cunningham v. Canada, [1993] 2 S.C.R. 143 is compelling authority and completely answers the Applicant's argument.

[16]            In Cunningham, at the noted paragraphs, the Chief Justice outlines the facts and gives the s.7 analysis:

¶ 1 On February 14, 1981, the appellant was sentenced to 12 years' imprisonment for manslaughter following a brutal slaying in Chatham Head, New Brunswick. Under the Parole Act in force at the time of his sentencing, he was entitled to be released on mandatory supervision after serving approximately two-thirds of his sentence, on April 8, 1989, provided that he was of good behaviour.

¶ 2 In 1986 the Parole Act was amended to allow the Commissioner of Corrections, within six months of the "presumptive release date", to refer a case to the National Parole Board where he has reason to believe, on the basis of information obtained within those six months, that the inmate is likely, prior to the expiration of his sentence, to commit an offence causing death or serious harm: Parole Act, R.S.C., 1985, c. P-2, s. 21.3(3)(a)(ii) (ad. c. 34 (2nd Supp.), s. 5). The Parole Board may, if it sees fit, deny release of the inmate.

...

¶ 4 This, however, was not to be. Shortly before his release date, the appellant received a notice that the Commissioner had decided to seek the continued detention of the appellant under the 1986 amendments to the Parole Act. ...

¶ 5 Following a detention hearing, the appellant was ordered to be detained until his sentence expired on February 13, 1993, subject to annual reviews. ...

¶ 12 I do not find it useful to ask whether the liberty interest was "vested" or "not vested". The only questions which arise under the Charter are whether a protected liberty interest is limited, and if so, whether that limitation accords with the principles of fundamental justice. ...

...

¶ 15 I conclude that the appellant has suffered deprivation of liberty. The next question is whether the deprivation is sufficiently serious to warrant Charter protection. The Charter does not protect against insignificant or "trivial" limitations of rights: [1986] 2 S.C.R. 713=">R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 759 (per Dickson C.J.); [1986] 2 S.C.R. 284=">R. v. Jones, [1986] 2 S.C.R. 284, at p. 314; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, at p. 259; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pp. 168-69. It follows that qualification of a prisoner's expectation of liberty does not necessarily bring the matter within the purview of s. 7 of the Charter. The qualification must be significant enough to warrant constitutional protection. To require that all changes to the manner in which a sentence is served be in accordance with the principles of fundamental justice would trivialize the protections under the Charter. To quote Lamer J. in Dumas, supra, at p. 464, there must be a "substantial change in conditions amounting to a further deprivation of liberty".

...

¶ 17 Having concluded that the appellant has been deprived of a liberty interest protected by s. 7 of the Charter, we must determine whether this is contrary to the principles of fundamental justice under s. 7 of the Charter. In my view, while the amendment of the Parole Act to eliminate automatic release on mandatory supervision restricted the appellant's liberty interest, it did not violate the principles of fundamental justice. The principles of fundamental justice are concerned not only with the interest of the person who claims his liberty [page152] has been limited, but with the protection of society. Fundamental justice requires that a fair balance be struck between these interests, both substantively and procedurally (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 502-3, per Lamer J.; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 212, per Wilson J.; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, at p. 882, per Iacobucci J.). In my view the balance struck in this case conforms to this requirement.

¶ 18 The first question is whether, from a substantive point of view, the change in the law strikes the right balance between the accused's interests and the interests of society. The interest of society in being protected against the violence that may be perpetrated as a consequence of the early release of inmates whose sentence has not been fully served needs no elaboration. On the other side of the balance lies the prisoner's interest in an early conditional release.

¶ 19 The balance is struck by qualifying the prisoner's expectation regarding the form in which the sentence would be served. The expectation of mandatory release is modified by the amendment permitting a discretion to prevent early release where society's interests are endangered. A change in the form in which a sentence is served, whether it be favourable or unfavourable to the prisoner, is not, in itself, contrary to any principle of fundamental justice. Indeed, our system of justice has always permitted correctional authorities to make appropriate changes in how a sentence is served, whether the changes relate to place, conditions, training facilities, or treatment. Many changes in the conditions under which sentences are served occur on an administrative basis in response to the prisoner's immediate needs or behaviour. Other changes are more general. From time to time, for example, new approaches in correctional law are introduced by legislation or regulation. These initiatives [page153] change the manner in which some of the prisoners in the system serve their sentences.

¶ 20 The next question is whether the nature of this particular change in the rules as to the form in which the sentence would be served violates the Charter. In my view, it does not. The change is directly related to the public interest in protecting society from persons who may commit serious harm if released on mandatory supervision. Only if the Commissioner is satisfied on the facts before him that this may be the case can he refer the matter to the Parole Board for a hearing. And only if the Board is satisfied that there is a significant danger of recidivism can it order the prisoner's continued incarceration. Thus the prisoner's liberty interest is limited only to the extent that this is shown to be necessary for the protection of the public. It is difficult to dispute that it is just to afford a limited discretion for the review of parole applicants who may commit an offence causing serious harm or death. Substantively, the balance is fairly struck.

2. Conclusion

[17]            In the present case, in the course of the oral hearing, Counsel for the Respondent admitted that by the challenged amendment, which introduced the exclusion which affected the Applicant's accelerated parole opportunity, the Applicant had been deprived of a liberty interest protected under s.7 of the Charter. However, the Respondent argues that the deprivation is not contrary to the principles of fundamental justice.

[18]            In the present case, as in Cunningham, the balance to be considered is between the interest of the person who claims his liberty has been limited, and the protection of the public. In the present case, prior to the December 2001 amendments, the Applicant qualified for accelerated parole consideration. However, by the amendments to the Act, as he was placed in a category of persons, who, apparently in Parliament's opinion, are a danger to the public, the Applicant was excluded from accelerated parole consideration and, thereby, the benefit of a less stringent test for parole. As found in Cunningham, I find that the change is directly related to the public interest in protecting society from persons who may commit serious harm.

[19]            In my opinion, the statutory change complained of does not violate the principles of fundamental justice. In the present case the balance tips in favour of society's interest in being satisfied that, even as first time offenders, persons who are potentially a danger to the public should not be given the concessions that the accelerated parole provisions provide.

[20]            As a result, I dismiss the Charter challenge.

D. The Board's rejection

[21]            There is no question that with the amendments in place, since the Applicant was sentenced on a Schedule 1 offence, the Applicant cannot take the benefits of accelerated parol provided in ss.125 and 126. In addition, by it's terms, the process in s.159 of the Regulations does not apply. Therefore, in my opinion, the Board was correct in its refusal to consider the argument placed before it.

                                               ORDER

For the reasons provided, the present application is dismissed. I make no order as to costs.

                                                                         "Douglas R. Campbell"                

                                                                                                   J.F.C.                               

                                     FEDERAL COURT

             Names of Counsel and Solicitors of Record

DOCKET:                                     T-1672-02

STYLE OF CAUSE: MICHAEL TESSIER

Applicant

and

ATTORNEY GENERAL OF CANADA

Respondent

PLACE OF HEARING:         KINGSTON, ONTARIO

DATE OF HEARING:           MAY 17, 2004   

REASONS FOR ORDER

AND ORDER BY:     CAMPBELL J.

DATED:                JUNE 3, 2004

APPEARANCES BY:   

Mr. John D. Dillon

                                                         FOR THE APPLICANT

Mr. Jeff Anderson

FOR THE RESPONDENT

SOLICITORS OF RECORD:       

O'CONNOR LAW OFFICE

Kingston, Ontario

FOR THE APPLICANT             

Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario

FOR THE RESPONDENT

FEDERAL COURT

                               Date: 20040603

            Docket: IMM-1672-02

BETWEEN:

MICHAEL TESSIER

Applicant

and

ATTORNEY GENERAL OF CANADA

                                     Respondent

REASONS FOR ORDER AND ORDER