Date:
20121211
Docket:
T-671-12
Citation: 2012
FC 1463
Ottawa, Ontario,
December 11, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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BRENT WILLIAM VAN BUSKIRK
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Applicant
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and
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CANADA (SOLICITOR GENERAL)
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant seeks judicial review of the calculation of his parole eligibility
dates by the Chief of Sentence Management [CSM] at Kent Institution in Agassiz,
British Columbia. According to the Applicant, the CSM committed an error of law
by including the community supervision portion of his youth sentence in
calculating his day parole, full parole, and statutory release dates
[eligibility dates] under the Corrections and Conditional Release Act,
SC 1992, c 20 [CCRA]. The Applicant asks this Court to order that his
eligibility dates be recalculated to exclude the community supervision portion
of his youth sentence.
II. Judicial Procedure
[2]
This
is an application for judicial review under section 18.1 of the Federal
Courts Act, RSC 1985, c F-7 of the CSM’s decision, dated February 29, 2012.
III. Background
[3]
The
Applicant, Mr. Brent William van Buskirk, was born in 1986 and is a first-time
offender serving an aggregate sentence of 17 years, 2 months.
[4]
On
August 29, 2004, the Applicant (a few weeks before his 18th birthday) murdered
an individual pursuant to a contract killing for profit.
[5]
In
December 2004, the Applicant (then aged 18) entered into a conspiracy with a
co-conspirator to murder an individual. The conspiracy did not come to
fruition.
[6]
In
January 2005, the Applicant entered into another conspiracy to kill another
individual. This conspiracy did not proceed beyond the planning stage.
[7]
On
December 21, 2006, the Applicant received a 24 month custodial sentence for the
common-law offence of contempt of court [contempt of court sentence] because he
refused to be sworn and to give evidence in the trial of his co-conspirator.
[8]
On
November 30, 2007, the Applicant plead guilty to first degree murder and received
a sentence under subparagraph 42(2)(q)(i) of the Youth Criminal
Justice Act, SC 2002, c 1 [YCJA] of 6 years in custody [custodial YCJA
sentence] and 4 years of conditional community supervision [non-custodial YCJA
sentence]. One year and 2 months were deducted from the custodial YCJA
sentence for time already served.
[9]
On
December 10, 2007, the Applicant received concurrent sentences of 8 and 6 years
for two counts of conspiracy to commit murder [adult conspiracy sentences]
under paragraph 465(1)(a) of the Criminal Code, RS, c C-34, s 1 [Code].
The Applicant’s adult conspiracy sentences were to run consecutively to his
contempt of court sentence and the YCJA sentences. The Applicant
received a credit of 1 year for pre-sentence custody towards each count of
conspiracy to commit murder.
[10]
The
Applicant’s sentences commenced on December 21, 2006.
[11]
On
December 13, 2007, the Correctional Service of Canada [CSC] informed the
Applicant that his warrant expiry date was February 20, 2024, his statutory
release date was June 1, 2018, his full parole eligibility date was December
19, 2012, and his day parole eligibility date was June 19, 2012.
[12]
In
calculating the Applicant’s eligibility dates, the CSC had included his
non-custodial YCJA sentence, bringing his aggregate sentence to 17 years
and 2 months.
[13]
On
February 27, 2012, the Applicant made submissions to the CSM requesting an
affidavit outlining his eligibility dates and asking if the combined sentences
were considered one sentence under section 139 of the CCRA.
[14]
On
February 29, 2012, the CSM confirmed that all of the Applicant’s sentences were
considered one sentence under section 139 of the CCRA and provided the
affidavit requested by the Applicant and described in paragraph 11, above.
[15]
On
June 13, 2012 and October 23, 2012, the CCRA was amended to make express
Parliament’s intention that non-custodial youth sentences under subparagraph
42(2)(q)(i) would be included in calculating an individual’s eligibility
dates for full parole and day parole, an individual’s statutory release date,
and an individual’s warrant expiry date.
IV. Decision under Review
[16]
The
CSM determined that the Applicant’s sentences had been merged under section 139
of the CCRA. In merging these sentences, the CSM included his 48-month
non-custodial YCJA sentence. The CSM consequently calculated his
eligibility dates according to an aggregate sentence of 17 years and 2 months.
[17]
According
to the CSM’s calculations, the Applicant’s eligibility date for day parole was
June 19, 2012 and for full parole was December 19, 2012, his statutory release
date was June 1, 2018, and his warrant expiry date was February 20, 2024.
V. Issue
[18]
Do
the recent amendments to the CCRA apply to the Applicant to include his
non-custodial YCJA sentence in determining his eligibility dates?
VI. Relevant Legislative
Provisions
[19]
Please
see Annex “A” for the relevant legislative provisions of the CCRA
(including those provisions coming into force on June 13, 2012 and October 23,
2012 pursuant to the amendments to the CCRA).
[20]
Please
see Annex “A” for the relevant legislative provisions of the CCRA that
applied before the amendments to the CCRA came into force on June 13,
2012 and October 23, 2012.
[21]
Please
see Annex “A” for the relevant legislative provisions of the YCJA.
[22]
Please
see Annex “A” for the relevant provisions of the Code.
VII. Position of the Parties
[23]
In
essence, the Applicant submits that his non-custodial YCJA sentence
should not be included in determining his parole eligibility dates because
parole cannot attach to non-custodial sentences.
[24]
The
Applicant cites P(J) v Canada (Attorney General), 2009 FC 402, [2010] 3
FCR 3, aff’d 2010 FCA 90, [2011] 4 FCR 29, for the proposition that a
non-custodial YCJA sentence does not fall within the meaning of
“sentence” under the CCRA for the purposes of calculating parole
eligibility dates. According to the Applicant, the facts of P(J) parallel
those in the present case, with two exceptions: (i) the Applicant was sentenced
under subparagraph 42(2)(q)(i) of the YCJA; and, (ii) he also
received consecutive sentences as an adult under the Code.
[25]
The
Applicant states that his sentence was converted into an adult offence under paragraph
743.5(1) of the Code when he was sentenced for a term of imprisonment
for conspiracy to commit murder.
[26]
According
to the Applicant, the CCRA defines “sentence” to mean a sentence of
imprisonment and youth sentence imposed under the YCJA.
[27]
The
Applicant acknowledges that legislative reform to Safe Streets and
Communities Act [SSCA] has expanded the definition of sentence in
the CCRA to include custodial and community supervision sentences.
[28]
Notwithstanding
these amendments, the Applicant argues that interpreting “sentence” to include
his non-custodial youth sentence is fundamentally flawed and that parole is a
discretionary form of release that allows an offender to serve a portion of his
custodial sentence outside the physical confines of a penal institution, it is
inconsistent with and cannot attach to a sentence, or portion of a sentence
that is non-custodial. The Applicant cites R v CAM, [1996] 1 S.C.R. 500 for
the proposition that custodial and non-custodial sentences are fundamentally
different and R v Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 for the
proposition that parole cannot apply to an offender who was under a conditional
sentence of imprisonment and not incarcerated. The Applicant, referring to P(J),
above, also observes that parole cannot be granted to a young offender who has
been conditionally released. Finally, the Applicant refers this Court to R v
K(C), 2008 ONCJ 236, which held that “[t]reating a transferred youth
exactly like an adult runs into an immediate difficulty in [sic] calculation of
the sentence itself” because a conversion can result in a person receiving a
sentence of imprisonment in excess of the 6-year period limited by the YCJA.
[29]
The
Respondent argues that the CSM did not err in calculating the Applicant’s
parole eligibility, statutory release, and warrant expiry dates. According to
the Respondent, the Applicant’s non-custodial YCJA sentence should be
included in determining his parole eligibility due to recent amendments to the CCRA.
[30]
The
Respondent submits that Parliament introduced the SSCA to extend the
meaning of sentence under sections 2 and 99 of the CCRA to include
non-custodial youth sentences in response to P(J), above.
[31]
In
particular, section 196 of the SSCA modifies the definition of sentence
in section 2 of the CCRA to include a youth sentence consisting of a
custodial portion and a non-custodial portion. As modified by section 197 of
the SSCA, paragraph 99(2)(b) of the CCRA also now provides
that the expiration of a sentence refers to the day on which the sentence
expires, notwithstanding the non-custodial portion of a youth sentence.
Finally, section 75 of the SSCA introduces section 119.2 of the CCRA,
which provides that, for the purposes of section 120 to 120.3 of the CCRA,
parole eligibility for a youth sentence is determined on the basis of the total
of its custodial and non-custodial periods.
[32]
The
Respondent states that section 76 of the SSCA came into force on June
13, 2012 and sections 196 and 197 of the SSCA came into force on October
23, 2012.
[33]
According
to the Respondent, the CSM calculated the Applicant’s parole eligibility on the
basis that (i) his youth sentences were converted into adult sentences under
subsection 743.5(1) of the Code and that (ii) his youth and adult
sentences were merged into one sentence under section 139 of the CCRA.
[34]
According
to the Respondent’s construction, section 743.5 of the Code deems a YCJA
sentence to be a sentence imposed under the Code where an individual
receives a youth sentence under subparagraph 42(2)(q)(i) of the YCJA
but receives a subsequent sentence as an adult. The Respondent reasons that
section 743.5 of the Code brings the Applicant’s youth sentence within
the scope of subsection 139(1) of the CCRA. In the interpretation
advanced by the Respondent, subsection 139(1) provides that an individual is
deemed to have been sentenced to one sentence if he or she is (i) subject to a
sentence that has not expired and (ii) receives additional sentences [merged
sentence]; the merged sentence begins on the first of those sentences to be
served and ends on the expiration of the last of them to be served.
[35]
The
Respondent argues that the Applicant’s consecutive sentences trigger section
120.1 of the CCRA, which outlines how parole is calculated if additional
consecutive sentences are imposed. Pursuant to section 120.1 of the CCRA, the
Applicant’s eligibility for parole is calculated from December 10, 2007, the
date of the imposition of his youth sentence of 8 years and 2 months and his
adult sentence for conspiracy to commit murder of 7 years. The Respondent
claims that the Applicant’s parole eligibility is determined on the basis of a
sentence of 15 years and 2 months.
[36]
The
Respondent argues that the Applicant’s eligibility date for full parole is 1/3
of his consecutive sentence of 15 years and 2 months under subsection 120(1)
and section 120.1 of the CCRA. Under paragraph 119(1)(c) of the CCRA,
the Applicant became eligible for day parole 6 months before he becomes
eligible for full parole. The effect of these provisions, the Respondent
submits, is that the Applicant’s eligibility dates are December 19, 2012 and
June 19, 2012 for full parole and day parole, respectively.
[37]
The
Respondent states that section 127 of the CCRA entitles a person serving
a determinate sentence to release after serving a period of custody of not less
than 2/3 of their sentence [statutory release date]. Based on a sentence of 17
years and 2 months, the Applicant’s statutory release date is June 1, 2018.
[38]
The
Respondent further claims that an order in the Applicant’s favor will have the
effect of reducing his sentence by four years. This, he argues, is inconsistent
with section 743.5 of the Code and makes P(J), above,
distinguishable.
[39]
The
Respondent submits that the Applicant’s real purpose in bringing this application
for judicial review is to reduce his sentence. According to the Respondent, if
the Applicant’s non-custodial YCJA sentence is not converted under
section 743.5 of the Code and merged under section 139 of the CCRA,
it will either disappear or remain as a concurrent portion of a youth sentence
under the YCJA. This will reduce his sentence for first-degree murder by four
years. The Respondent submits that this is not consistent with the sentencing
decision of the British Columbia Supreme Court in R v van Buskirk, 2007
BCSC 1925, which expressly made the Applicant’s sentence for conspiracy to
commit murder consecutive to his sentence for first degree murder. Nor, the
Respondent argues, is this interpretation consistent with a plain reading of
sections 743.5 of the Code and 139 of the CCRA, which seek to
treat offenders with multiple consecutive offences as adults serving a single
sentence under the Code.
[40]
P(J), above,
according to the Respondent, addressed the discrete issue of including
non-custodial youth sentences in calculating parole eligibility. By contrast,
the Applicant’s consecutive adult sentence triggered the application of
subsection 743.5(1) of the Code. The Respondent reasons that the effect
of subsection 743.5(1) is that the YCJA no longer applies to the
Applicant. Since subsection 743.5(1) deems the Applicant to having been
sentenced under the Code, the Respondent submits that the YCJA’s
provisions with respect to community supervision, conditional supervision, and
continuation of custody no longer apply. According to the Respondent, the
Federal Court of Appeal in P(J), above, did not address the sentence
conversion and merger provisions in sections 743.5 of the Code and 139 of the CCRA
and, as a result, is neither guiding nor binding on this Court.
[41]
The
Respondent submits that, should this Court find that the amendments to the CCRA
in the SSCA do not apply to the Applicant because they came into effect
after he was sentenced, then it should direct the CSC to administer the
sentence in a manner consistent with the terms of the youth sentence under the YCJA.
In particular, this Court should order the CSC to convert the supervision YCJA
sentence of 4 years into a similar period of statutory release under the CCRA.
The Respondent reasons that the statutory release provisions in section 127 of
the CCRA are analogous to the community supervision provisions in
subparagraph 42(2)(q)(i) of the YCJA. Such an approach would
convert the Applicant’s first degree murder sentence into a period of four
months and two years in prison and a period of statutory release for four
years.
[42]
The
Respondent submits that this approach respects the intention of Parliament as
expressed in sections 743.5 of the Code and 139 of the CCRA and
that it maintains the integrity of the sentence, respects the principles
informing youth sentences under the YCJA, and avoids the potential
problem of subjecting the Applicant to the dual jurisdiction of the Parole
Board of Canada (while on parole) and of the provincial director, youth
workers, and youth justice court (while serving his non-custodial YCJA
sentence).
[43]
Finally,
the Respondent argues that this application for judicial review is moot or will
likely be moot at the date of the hearing of this application for judicial
review. According to the Respondent, the Applicant became eligible for day
parole under subsection 119(1) of the CCRA on June 19, 2012 and will be
eligible to apply for day parole on December 19, 2012.
[44]
The
Respondent cites Borowski v Canada (Attorney General), [1989] 1 S.C.R. 342
for the proposition that a decision of a court is moot if it will not have the
effect of resolving a controversy which affects or may affect the rights of the
parties. The Respondent states that a decision on this application for judicial
review has no practical effect because (i) the Applicant will likely be
eligible to apply for full parole by the time it is heard and (ii) it is
unlikely that it will have any practical effect on similarly-situated
applicants.
[45]
The
Respondent distinguishes P(J), above, where this Court and the Federal
Court of Appeal adjudicated a moot parole eligibility question on YCJA
and adult sentencing because the issue would very likely arise in subsequent
applications. The Respondent argues that this rationale does not extend to this
application for judicial review because amendments to the CCRA prevent
applications on similar facts from succeeding. In particular, these amendments
express Parliament’s intention that both custodial and non-custodial portions
of sentences under the YCJA are included in calculating parole
eligibility.
VIII. Analysis
[46]
In
P(J), above, Justice Richard Mosley of this Court held that the
interpretation of the parole eligibility provisions is the standard of correctness
(at para 10).
[47]
This
Court follows Justice Mosley’s determination of the applicable standard of
review. The correctness standard is even more appropriate because the dispositive
question in the application for judicial review is the temporal application of
recent amendments to the CCRA. A question as to the temporal application
of a law is a question of law that is “of central importance to the legal
system … and outside the … specialized area of expertise” of the CSM. Under Dunsmuir
v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 such a question of law attracts the standard of
correctness.
[48]
The
critical question in this application for judicial review is whether the
Applicant’s non-custodial YCJA sentence can be included in calculating
his parole eligibility dates. A plain reading of paragraph 743.5(3)(a)
of the Code suggests that the Applicant’s non-custodial YCJA
sentence must be included in calculating his parole eligibility under the CCRA.
[49]
This
Application represents an interesting departure from the facts underlying the
Federal Court of Appeal’s decision in P(J), above. The applicant in P(J)
was convicted and sentenced as a youth under the YCJA for second degree
murder and did not receive a consecutive sentence as an adult under the Code.
Conversely, this Applicant was convicted and sentenced as a youth under the YCJA
for first degree murder and was subsequently convicted and sentenced
consecutively as an adult under the Code.
[50]
The
facts underlying this Application attract a different matrix of statutory
provisions than those underlying P(J). For the purposes of this
Application, the most important of these statutory provisions is paragraph
743.5(3)(a) of the Code, which provides that, where subsection
743.5(1) applies, the remainder of a youth sentence and a subsequent term of
imprisonment are deemed to constitute one sentence of imprisonment for the
purposes of section 139 of the CCRA. Subsection 743.5(1) provides that
if a young person or an adult is or has been sentenced to a term of
imprisonment for an offence while subject to a youth sentence imposed under
paragraph 42(2)(q) of the YCJA, the remaining portion of the
youth sentence shall be dealt with, for all purposes under this Act or any
other Act of Parliament, as if it had been a sentence imposed under the Code.
[51]
The
dispositive issue in P(J) was the definition of “sentence” in section 2
of the CCRA and whether that definition could encompass a non-custodial
youth sentence. In holding that it could not, the Federal Court of Appeal
reasoned that the definition of “sentence” in section 2 of the CCRA was
limited to custodial sentences:
[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.”
...
[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)(ii) of the YCJA is a “single sanction”, only the
custody portion thereof constitutes a “sentence of imprisonment” …
[52]
The
Federal Court of Appeal in P(J) supported its reasoning by reading the
definition of “sentence” in section 2 of the CCRA in conjunction with
subsections 89(1) and (3) of the YCJA:
[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 [Prisons and Reformatories Act] 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.
[53]
The
critical distinction between this Application and P(J) is that
subsection 743.5(1) and paragraph 743.5(3)(a) of the Code apply
to the Applicant but did not apply to the applicant in P(J). The
Applicant is subject to the conversion provisions under section 743.5 of the Code because he was
sentenced to a term of imprisonment for an offence while subject to a youth
sentence imposed under paragraph 42(2)(q) of the YCJA. The
effect of the subsection 743.5(1) of the Code is that his youth sentence
under paragraph 42(2)(q) of the YCJA must be dealt with, for all
purposes under the Code or any other Act of Parliament (including the CCRA),
as if it had been a sentence imposed under the Code. Since subsection
743.5(1) applies to the Applicant, paragraph 743.5(3)(a) also applies.
[54]
Neither
the Applicant nor the Respondent dispute that section 743.5 applies.
[55]
The
effect of paragraph 743.5(3)(a) of the Code is that the rationale
underlying the Federal Court of Appeal’s decision in P(J) cannot apply
to this Application. The issue in P(J) was that the definition of
“sentence” in section 2 of the CCRA had been limited to a sentence of
imprisonment. By contrast, paragraph 743.5(3)(a) deems the Applicant’s
non-custodial YCJA sentence and subsequent terms of imprisonment to
constitute one sentence of imprisonment for the purposes of section 139 of the CCRA.
[56]
This
statutory matrix neutralizes the impact of the definition of “sentence” in
section 2 of the unamended CCRA that was so critical in P(J). By
virtue of paragraph 743.5(3)(a) (which was in force when the Applicant
was sentenced), the Applicant’s non-custodial YCJA sentence was deemed a
single sentence of imprisonment for the purpose of the sentence merger
provisions in section 139 of the CCRA. Under section 139, his
non-custodial YCJA sentence merged with his other sentences into a
single sentence for the purpose of calculating his parole eligibility dates
under sections 119 and 120.1 of the CCRA. This single sentence began on
the first day of the first of his sentences to be served and ends on the last
day of the last of them to be served.
[57]
In
sum, this Application engages a provision (paragraph 743.5(3)(a) of the Code)
that did not arise on the facts in P(J) and therefore could not have
influenced the Federal Court of Appeal’s determination. In this Application,
the conversion provisions in section 743.5(3) of the Code merged the
Applicant’s non-custodial YCJA sentence with his other sentences of
imprisonment into a single sentence of imprisonment for the purpose of applying
the merger provisions of the CCRA. In R v C(A), 2008 ONCJ 613,
Justice Paul Robertson of the Ontario Court of Justice came to a similar
conclusion in interpreting the conversion provisions of the Code: “[The effect
of section 743.5 is that a young offender] has now been sentenced on the adult
matters and is therefore presently serving [a] sentence, any youth sentence
that I impose will be treated as if it was imposed under the Criminal Code
as opposed to the YCJA and that the sentences will be treated as a
single sentence, pursuant to s. 139 of the Corrections and Conditional
Release Act” (at para 18).
[58]
The
undersigned member of this Court observes, in obiter, that if paragraph
743.5(3)(a) had not applied, this Court would have had to consider
whether the amendments to the CCRA apply to the Applicant. To answer
this question, this Court would have been required to assess the temporal
application of section 2 “sentence”, paragraph 99(2)(b), and section
119.2 of the CCRA.
[59]
Before
proceeding, it is helpful to consider the distinction that Professor Ruth Sullivan draws between legislation of retroactive, retrospective and immediate
application. While legislation of retroactive application operates to “change
the past legal effect of a past situation” and legislation of
retrospective application operates to “change the future legal effect of
a past situation”, legislation of immediate application operates to
“change the future legal effect of an on-going situation”
[Emphasis added] (Professor Ruth Sullivan, Sullivan on the Construction of
Statutes, 5th ed (Markham: LexisNexis, 2008) at 669).
[60]
Gustavson
Drilling (1964) Ltd v Canada (Minister of National Revenue – MNR), [1977] 1 SCR
271 holds that there is a presumption that legislation is not construed to have
retrospective effect unless “such a construction is expressly or by necessary
implication required by the language of the Act. An amending enactment may
provide that it shall be deemed to have come into force on a date prior to its
enactment or it may provide that it is to be operative with respect to
transactions occurring prior it its enactment. In those instances the statute
operates retrospectively”. In the present case, section 119.2 of the CCRA
came into force on June 13, 2012 and the amended definition of “sentence” in
section 2 and the amended version of paragraph 99(2)(b) came into force
on October 23, 2012. The Orders-in-Council giving effect to the SSCA did
not specify whether the amendments to the CCRA would be deemed to come
into force before this date (SI/2012-48 (2012) C Gaz II, 1627; SI/2012-40
(2012) C Gaz II, 1410). Consequently, the presumption against retroactivity is
not rebutted.
[61]
Even
though paragraph 743.5(3)(a) is determinative of this Application and the Respondent
did not specifically address the presumption of retroactivity, this Court finds
that it may be worthwhile to consider if the CCRA amendments would have
been of immediate or retroactive application if the Applicant were not subject
to section 743.5.
[62]
In
Quebec (Attorney General) v Quebec (Expropriation Tribunal), [1986] 1
SCR 732, Justice Julien Chouinard of the Supreme Court of Canada held that a
“distinction must be made between the retroactivity of legislation and its
immediate effect” (at p 744). Justice Chouinard reasoned that new legislation
cannot apply to immediate effects already produced or that occurred over an
extended period of time before that new legislation came into effect because
that would give retroactive effect to the new legislation. Nonetheless such new
legislation “will apply to future effects arising out these legal
situations, which have not yet occurred at the time it came into effect”
(Quebec (Expropriation Tribunal), citing Louis Baudouin, Les aspects
généraux du droit public dans la province de Québec (Paris: Dalloz, 1965)
and that it “applied to all future effects of both pending and
future legal relations” [Emphasis added] (citing Professor Pierre-André Côté,
The Interpretation of Legislation in Canada (Cowansville: Éditions Yvon Blais,
1984)).
[63]
Québec
(Expropriation Tribunal), concerned the application of a statute that came
into force in 1973 [1973 statute] to an expropriation that began in 1970 but
was discontinued in 1979. The 1973 statute required the Québec government to
seek the authorization of an expropriation tribunal before discontinuing an
expropriation but the predecessor statute only required the government to file
a unilateral discontinuance. Justice Chouinard rejected the Québec government’s
argument that the 1973 statute did not apply because the appropriation began
before its enactment. Even though the underlying legal situation occurred
before the 1973 statute came into effect, Justice Chouinard reasoned that its
application was immediate rather than retroactive. This was because the
underlying situation was of an on-going nature and the effect of the 1973
statute was to change the future legal effect of that on-going situation.
Indeed, Justice Chouinard accepted the respondent’s argument that the 1973
statute “intended to remove for the future the right to file a unilateral
discontinuance previously enjoyed by the appellant. That section has no
effect on the right in so far as it was exercised before [section] 55 came into
effect” [Emphasis added].
[64]
Are
the amendments to the CCRA of retroactive or immediate application? If
section 743.5 of the Code had not applied, would these amendments have
operated to change the past legal effect of the Applicant’s past parole
eligibility or would they have changed the future legal effect of his
on-going parole eligibility?
[65]
A
plain reading of paragraph 119(1)(c) and section 120.1 of the un-amended
CCRA suggests that the amended CCRA would have operated to
change the past legal effect of the Applicant’s on-going eligibility for full
parole and day parole if section 745.3 of the Code had not applied.
[66]
Section
120.1 of the un-amended CCRA provides that an offender who receives an
additional consecutive sentence is not eligible for full parole until
the day on which he or she has served, commencing on the day on which that
additional sentence was imposed: (i) any remaining period of ineligibility in
relation to the sentence the offender was serving when the additional sentence
was imposed; and, (ii) the period of ineligibility in relation to the
additional sentence. Section 120 of the un-amended CCRA provides that 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 1/3 of the
sentence and seven years. Under paragraph 119(1)(c) of the un-amended CCRA,
the portion of a sentence that must be served by an offender serving a sentence
of two years or more before he or she may be released on day parole is, subject
to non-applicable exceptions, the greater of (i) the portion ending six months
before the date on which full parole may be granted, and (ii) six months.
[67]
Before
the amendments to the CCRA came into force on June 13, 2012 and October
23, 2012, the un-amended definition of “sentence” in section 2 of the CCRA
applied to the Applicant. In P(J), above, Justice Marc Nadon held that,
under this definition, the non-custodial portion of a YCJA sentence
could not be included in determining the Applicant’s parole eligibility dates
(at para 65 and 67).
[68]
If
section 743.5 had not applied to this Application, the past legal effect of the
un-amended CCRA (as interpreted by Justice Nadon in P(J), above,
would have been that the Applicant would become eligible to apply for full
parole and for day parole before section 119.2 of the CCRA came into
force on June 13, 2012 and before the amended definition of “sentence” in
section 2 and paragraph 99(2)(b) of the CCRA came into force on
October 23, 2012.
[69]
The
amendments to the CCRA, if section 743.5 had not been engaged, would
have changed the past legal effect of the Applicant’s ability to apply for full
parole and day parole by delaying the date on which he became eligible to apply
for full parole to December 19, 2012 and to apply for day parole to June 19,
2012. Since the Applicant would (but for section 743.5) have already been
eligible to apply by the time the amendments to the CCRA came into
force, applying those amendments to his circumstances would have had the effect
of changing the past legal effect of this situation. Consequently, applying the
amendments in such circumstances would have resulted in an impermissible
retroactive application of the law.
[70]
Having
disposed of the question of the Applicant’s full and day parole eligibility
dates by applying paragraph 743.5(3)(a), it is not, of course necessary
to consider the issue of retroactivity for the purposes of disposing of this
Application. The undersigned member of this Court stresses that paragraph
743.5(3)(a) is dispositive of this Application and that the discussion
of the temporality of the amendments to the CCRA is in obiter.
[71]
Pursuant
to paragraph 743.5(3)(a) of the Code and section 139 of the CCRA,
the Applicant’s non-custodial YCJA sentence must also be included in
calculating the Applicant’s statutory release date. Section 743.5 and section
139 merged the Applicant’s non-custodial YCJA sentence with his other
sentences into a single sentence of imprisonment for the purpose of calculating
his statutory release date under section 127 of the CCRA.
[72]
Even
if paragraph 743.5(3)(a) had not been engaged, the amendments to the CCRA
would have been of immediate rather than retrospective application to the
Applicant’s statutory release date. Consequently, the amended definition of
“sentence” in section 2 of the CCRA would have applied to the
determination of the Applicant’s statutory release date under section 127 of
the CCRA and the Respondent’s concern that the Applicant’s real purpose
in bringing this Application is to reduce his sentence would have been unwarranted.
[73]
Before
the amended definition of sentence in section 2 of the CRRA came into
force on October 23, 2012 and in the absence of paragraph 743.5(3)(a), P(J),
above, would have applied to exclude the Applicant’s non-custodial YCJA
sentence from the meaning of sentence and, thus, from the calculation of
statutory release date under section 127. Under this framework and pursuant to
subsections 127(1) and (3) of the CCRA, the Applicant would have been
entitled to be released on the day on which he completed 2/3 of his sentence
[statutory release date].
[74]
The
Applicant, however, did not reach his statutory release date before the amended
CCRA came into force on October 23, 2012. At that point, the Applicant
had the possibility, but not an actual entitlement to, a statutory
release date determined by excluding his non-custodial YCJA sentence.
Such an entitlement was subject to the condition precedent that the Applicant
had completed 2/3 of his sentence. Until that condition precedent had been
satisfied, it cannot be said that the past legal effect of the Applicant’s
situation is changed by the inclusion of his custodial YCJA sentence in
calculating his statutory release date. Consequently, section 2 of the amended CCRA
would have been of immediate application to the Application, if paragraph
743.5(3)(a) did not already apply to include his non-custodial YCJA
sentence in calculating his statutory release date. That is to say that it
would have changed the future legal effect of his previous sentencing
situation.
[75]
This
Court adds that, even if a law is of immediate application, it may interfere
with a vested right (Québec (Expropriation Tribunal), above, at p 746).
The Applicant would not have met the conditions precedent to establish his
entitlement to an earlier statutory release date before the amended CCRA
came into force. It follows that he would have had no vested right to have the
previous definition of “sentence”, as interpreted by P(J), above,
applied in his circumstances.
[76]
This
Court has decided to exercise its discretion to hear this Application even
though it will not have the effect of resolving a controversy which affects or
may affect the rights of the parties because the Applicant became eligible for
day parole under subsection 119(1) of the CCRA on June 19, 2012 and
for full parole under section 120.1 of the CCRA on December 19, 2012.
[77]
Borowski, above, holds
that the following factors ought to be considered in exercising the discretion
to hear an Application notwithstanding its mootness: (i) the existence of an
adversarial relationship; (ii) the concern for judicial economy; and (iii) the
court’s proper function to adjudicate and not legislate.
[78]
The
factor of judicial economy militates highly in favor of hearing this
Application. The issues of whether paragraph 743.5(3)(a) already applies
to include a non-custodial YCJA sentence in calculating parole
eligibility dates and whether the amendments to the CCRA have an
immediate or retrospective effect on the calculation of the day and full parole
of individuals is very likely to arise in other applications. As Justice John Sopinka stated in Borowski, above, “[t]he economics of judicial involvement
are weighed against the social cost of continued uncertainty in the law” (at
para 37).
IX. Conclusion
[79]
For
all of the above reasons, as this matter is not moot as discussed above, the
Applicant’s application for judicial review in regard to the calculation of the
Applicant’s parole eligibility under section 120.1 of the CCRA and under
paragraph 119(1)(c) of the CCRA is denied on the basis of
paragraph 743.5(3)(a) of the Code.
[80]
The
question in the Application of the Applicant to this Court is in respect of the
calculation of parole eligibility. The derivation of that calculation stems
from the recognition that the Applicant’s sentence under the Youth Criminal
Justice Act is to be interpreted as if the sentence had been under the Criminal
Code.
JUDGMENT
THIS
COURT ORDERS that review be denied with respect to the
calculation of the Applicant’s eligibility dates for full parole under section
120.1 of the CCRA and for day parole under paragraph 119(1)(c) of
the CCRA.
“Michel M.J. Shore”
ANNEX “A”
Relevant
Legislative Provisions
The following legislative provisions of
the Corrections
and Conditional Release Act, SC 1992, c 20 [CCRA] (including those
provisions coming into force on June 13, 2012 and October 23, 2012 pursuant to
the amendments to the CCRA are relevant:
|
2. (1) In this Part,
…
“sentence”
means a sentence of imprisonment and includes
(a)
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
(b)
a youth sentence imposed under the Youth Criminal Justice Act
consisting of a custodial portion and a portion to be served under
supervision in the community subject to conditions under paragraph 42(2)(n)
of that Act or under conditional supervision under paragraph 42(2)(o),
(q) or (r) of that Act;
…
99 (2) For the purposes of
this Part, a reference to the expiration according to law of the sentence of
an offender shall be read as a reference to the day on which the sentence
expires, without taking into account
(a)
any period during which the offender could be entitled to statutory release;
(b)
in the case of a youth sentence imposed under the Youth Criminal Justice
Act, the portion to be served under supervision in the community subject
to conditions under paragraph 42(2)(n) of that Act or under
conditional supervision under paragraph 42(2)(o), (q) or (r) of
that Act; or
(c)
any remission that stands to the credit of the offender on November 1, 1992.
…
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
(a)
one year, where the offender was, before October 15, 1977, sentenced to
preventive detention;
(b)
where the offender is an offender, other than an offender referred to in
paragraph (b.1), who was sentenced to detention in a penitentiary for an
indeterminate period, the longer of
(i)
the period required to be served by the offender to reach the offender’s full
parole eligibility date, determined in accordance with section 761 of the Criminal
Code, less three years, and
(ii)
the period required to be served by the offender to reach the offender’s full
parole eligibility date, determined in accordance with subsection 120.2(2),
less three years;
(b.1)
where the offender was sentenced to detention in a penitentiary for an
indeterminate period as of the date on which this paragraph comes into force,
the longer of
(i)
three years, and
(ii)
the period required to be served by the offender to reach the offender’s full
parole eligibility date, determined in accordance with subsection 120.2(2),
less three years;
(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.
…
119.2 For the purposes of sections
120 to 120.3, the eligibility for parole of a young person in respect of whom
a youth sentence is imposed under paragraph 42(2)(n), (o), (q)
or (r) of the Youth Criminal Justice Act and who is transferred
to a provincial correctional facility for adults or a penitentiary under
section 89, 92 or 93 of that Act shall be determined on the basis of the
total of the custody and supervision periods of the youth sentence.
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.
…
120.1 (1) A person who is not
serving a sentence and who receives more than one sentence on the same day is
not eligible for full parole until the day on which they have served a period
equal to the total of
(a)
the period of ineligibility in respect of any portion of the sentence
constituted under subsection 139(1) that is subject to an order under section
743.6 of the Criminal Code or section 140.4 of the National Defence
Act, and
(b)
the period of ineligibility in respect of any other portion of that sentence.
(2)
If an offender who is serving a sentence, or is serving a sentence that was
constituted under subsection 139(1), receives an additional sentence that is
to be served consecutively to the sentence they are serving when the
additional sentence is imposed — or receives, on the same day, two or more
additional sentences to be served consecutively and the additional sentences
are to be served consecutively to the sentence they are serving when the
additional sentences are imposed — the offender is not eligible for full
parole until the day on which they have served, from the day on which the
additional sentence is or sentences are imposed, the total of the following
periods:
(a)
any remaining period of ineligibility in respect of the sentence they are
serving when the additional sentence is or sentences are imposed, and
(b)
the period of ineligibility in respect of the additional sentence or, in the
case of two or more additional sentences, a period equal to the total of the
periods of ineligibility in respect of all of the additional sentences.
(3)
Despite subsection (2), if an offender who is serving a sentence or a
sentence that was constituted under subsection 139(1) receives an additional
sentence or two or more sentences that are to be served consecutively to a
portion of the sentence they are serving when the additional sentence is
imposed — or receives, on the same day, two or more additional sentences
including a sentence to be served concurrently with the sentence being served
and one or more sentences to be served consecutively to the additional
concurrent sentence — they are not eligible for full parole until the day on
which they have served, from the day on which the additional sentence is or
sentences are imposed, any remaining period of ineligibility to which they
are subject and the longer of the following periods:
(a)
one third of the period that equals the difference between the length of the
sentence that was constituted under subsection 139(1), including the
additional sentence or sentences, and the length of the sentence that they
are serving when the additional sentence is or sentences are imposed; or
(b)
the period of ineligibility of the additional sentence that is or sentences
that are ordered to be served consecutively.
120.2 (1) Subject to subsection
(2), if an offender who is serving a sentence, or is serving a sentence that
was constituted under subsection 139(1), receives an additional sentence that
is to be served concurrently with the sentence they are serving when the additional
sentence is imposed, they are not eligible for full parole until the day that
is the later of
(a)
the day on which they have served the period of ineligibility in respect of
the sentence they are serving when the additional sentence is imposed, and
(b)
the day on which they have served
(i)
the period of ineligibility in respect of any portion, of the sentence that
includes the additional sentence as provided by subsection 139(1), that is
subject to an order under section 743.6 of the Criminal Code or
section 140.4 of the National Defence Act, and
(ii)
the period of ineligibility in respect of any other portion of that sentence.
…
127. (1) Subject to any
provision of this Act, an offender sentenced, committed or transferred to
penitentiary is entitled to be released on the date determined in accordance
with this section and to remain at large until the expiration of the sentence
according to law.
…
(3)
Subject to this section, the statutory release date of an offender sentenced
on or after November 1, 1992 to imprisonment for one or more offences is the
day on which the offender completes two thirds of the sentence.
…
139. (1) For the purposes of
the Criminal Code, the Prisons and Reformatories Act, the International
Transfer of Offenders Act and this Act, a person who is subject to two or
more sentences is deemed to have been sentenced to one sentence beginning on
the first day of the first of those sentences to be served and ending on the
last day of the last of them to be served.
|
2. (1) Les
définitions qui suivent s’appliquent à la présente partie.
[...]
«
peine » ou « peine d’emprisonnement » S’entend notamment :
(a) d’une peine
d’emprisonnement infligée 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;
(b) d’une peine
spécifique infligée en vertu de la Loi sur le système de justice pénale
pour les adolescents, laquelle comprend la partie purgée sous garde et
celle purgée sous surveillance au sein de la collectivité en application de
l’alinéa 42(2)n) de cette loi ou en liberté sous condition en
application des alinéas 42(2)o), q) ou r) de cette loi.
[...]
99
(2)
Pour l’application de la présente partie, la mention de l’expiration légale
de la peine que purge un délinquant s’entend du jour d’expiration de la peine
compte non tenu :
(a) de la libération
d’office à laquelle il pourrait avoir droit;
(b) dans le cas d’une
peine spécifique infligée en vertu de la Loi sur le système de justice
pénale pour les adolescents, de la partie de la peine purgée sous
surveillance au sein de la collectivité en application de l’alinéa 42(2)n)
de cette loi ou en liberté sous condition en application des alinéas 42(2)o),
q) ou r) de cette loi;
(c) des réductions de
peine à son actif en date du 1er novembre 1992.
[...]
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 :
(a) un an, en cas de
condamnation à la détention préventive avant le 15 octobre 1977;
(b) dans le cas d’un
délinquant — autre que celui visé à l’alinéa b.1) — condamné à une peine de
détention dans un pénitencier pour une période indéterminée, la période qui
se termine trois ans avant l’admissibilité à la libération conditionnelle
totale déterminée conformément à l’article 761 du Code criminel ou, si
elle est supérieure, la période qui se termine trois ans avant
l’admissibilité à la libération conditionnelle totale déterminée conformément
au paragraphe 120.2(2);
(b.1) dans le cas d’un
délinquant condamné, avant la date d’entrée en vigueur du présent alinéa, à
une peine de détention dans un pénitencier pour une période indéterminée,
trois ans ou, si elle est supérieure, la période qui se termine trois ans
avant l’admissibilité à la libération conditionnelle totale déterminée
conformément au paragraphe 120.2(2);
(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.
[...]
119.2
Pour
l’application des articles 120 à 120.3, l’admissibilité à la libération
conditionnelle de l’adolescent qui a reçu une des peines spécifiques prévues
aux alinéas 42(2)n), o), q) ou r) de la Loi
sur le système de justice pénale pour les adolescents et est transféré
dans un établissement correctionnel provincial pour adultes ou dans un
pénitencier au titre des articles 89, 92 ou 93 de cette loi est déterminée en
fonction de la somme des périodes de garde et de surveillance de la peine
spécifique.
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.
[...]
120.1 (1) La personne
qui est condamnée le même jour à plusieurs peines d’emprisonnement alors
qu’elle n’en purgeait aucune n’est admissible à la libération conditionnelle
totale qu’après avoir accompli le temps d’épreuve égal à la somme des
périodes suivantes :
(a) le temps d’épreuve
requis relativement à la partie de la peine, déterminée conformément au
paragraphe 139(1), qui est visée par une ordonnance rendue en vertu de
l’article 743.6 du Code criminel ou de l’article 140.4 de la Loi
sur la défense nationale;
(b) le temps d’épreuve
requis relativement à toute autre partie de cette peine.
(2) Le délinquant dont la peine
d’emprisonnement — peine simple ou peine déterminée conformément au
paragraphe 139(1) — n’est pas expirée et qui est condamné à une peine
d’emprisonnement supplémentaire à purger consécutivement à l’autre ou qui est
condamné le même jour à plusieurs peines d’emprisonnement supplémentaires à
purger consécutivement à la peine non expirée n’est admissible à la
libération conditionnelle totale qu’après avoir accompli, à compter du jour
de la condamnation, le temps d’épreuve égal à la somme des périodes suivantes
:
(a) le reste du temps
d’épreuve relatif à la peine qu’il purgeait au moment de la condamnation;
(b) le temps d’épreuve
relatif à la peine supplémentaire ou, en cas de condamnation à plusieurs
peines supplémentaires, la période égale à la somme des temps d’épreuve
relatifs à celles-ci.
(3) Par dérogation au
paragraphe (2), le délinquant dont la peine d’emprisonnement — peine simple
ou peine déterminée conformément au paragraphe 139(1) — n’est pas expirée et
qui est condamné à une ou plusieurs peines d’emprisonnement supplémentaires à
purger consécutivement à une partie de la peine non expirée ou qui est
condamné le même jour à plusieurs peines d’emprisonnement supplémentaires
dont une à purger concurremment à la peine non expirée et une ou plusieurs
peines à purger consécutivement à la peine supplémentaire concurrente n’est
admissible à la libération conditionnelle totale qu’après avoir accompli, à
compter du jour de la condamnation, le temps d’épreuve qui correspond à la
période la plus longue résultant de la somme des périodes ci-après, d’une
part, le reste du temps d’épreuve relatif à la peine qu’il purgeait au moment
de la condamnation et, d’autre part :
(a) soit un tiers de la
période équivalant à la différence entre la durée de la peine déterminée
conformément au paragraphe 139(1) qui englobe la ou les peines
supplémentaires et la durée de la peine non expirée;
(b) soit le temps
d’épreuve relatif à la ou aux peines supplémentaires à purger
consécutivement.
120.2 (1) Sous
réserve du paragraphe (2), le délinquant dont la peine d’emprisonnement —
peine simple ou peine déterminée conformément au paragraphe 139(1) — n’est
pas expirée et qui est condamné à une peine d’emprisonnement supplémentaire à
purger concurremment à l’autre n’est admissible à la libération
conditionnelle totale qu’à la plus éloignée des dates suivantes :
a) la date à laquelle il a
accompli le temps d’épreuve relatif à la peine qu’il purgeait au moment de la
condamnation;
b) la date à laquelle il a
accompli, d’une part, le temps d’épreuve requis relativement à la partie de
la peine, déterminée conformément au paragraphe 139(1) et englobant la peine
supplémentaire, qui est visée par une ordonnance rendue en vertu de l’article
743.6 du Code criminel ou de l’article 140.4 de la Loi sur la
défense nationale et, d’autre part, le temps d’épreuve requis
relativement à toute autre partie de cette peine.
[...]
127. (1) Sous réserve
des autres dispositions de la présente loi, l’individu condamné ou transféré
au pénitencier a le droit d’être mis en liberté à la date fixée conformément
au présent article et de le demeurer jusqu’à l’expiration légale de sa peine.
[...]
(3) La date de libération
d’office d’un individu condamné à une peine d’emprisonnement le 1er novembre
1992 ou par la suite est, sous réserve des autres dispositions du présent
article, celle où il a purgé les deux tiers de sa peine.
[...]
139. (1) Pour
l’application du Code criminel, de la Loi sur les prisons et les
maisons de correction, de la Loi sur le transfèrement international
des délinquants et de la présente loi, le délinquant qui est assujetti à
plusieurs peines d’emprisonnement est réputé n’avoir été condamné qu’à une
seule peine commençant le jour du début de l’exécution de la première et se
terminant à l’expiration de la dernière.
|
The following legislative provisions of
the CCRA
that
applied before the amendments to the CCRA came into force
on June 13, 2012 and October 23, 2012 are relevant:
|
2. (1) In this Part,
…
“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;
…
120.1 (1) Where an offender who
is serving a sentence receives an additional sentence that is to be served
consecutively to the sentence the offender was serving when the additional
sentence was imposed, the offender is not eligible for full parole until the
day on which the offender has served, commencing on the day on which the
additional sentence was imposed,
(a)
any remaining period of ineligibility in relation to the sentence the
offender was serving when the additional sentence was imposed; and
(b)
the period of ineligibility in relation to the additional sentence.
(2)
Notwithstanding subsection (1), where an offender who is serving a sentence
receives an additional sentence that is to be served consecutively to a
portion of the sentence the offender was serving when the additional sentence
was imposed, the offender is not eligible for full parole until the day that
is the latest of
(a)
the day on which the offender has served the period of ineligibility for full
parole in relation to the sentence the offender was serving when the
additional sentence was imposed,
(b)
the day on which the offender has served, commencing on the date on which the
additional sentence was imposed, the period of ineligibility for full parole
in relation to the additional sentence, and
(c)
the day on which the offender has served the period of ineligibility for full
parole in relation to the sentence that includes the additional sentence as
provided by subsection 139(1).
|
2. (1) Les
définitions qui suivent s’appliquent à la présente partie.
[...]
«
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.
[...]
120.1 (1) Le délinquant
dont la peine d’emprisonnement n’est pas expirée et qui est condamné à une
peine d’emprisonnement supplémentaire à purger à la suite de l’autre n’est
pas admissible à la libération conditionnelle totale avant d’avoir purgé, à
la fois, depuis le jour où il s’est vu infliger cette peine supplémentaire :
a) le reste du temps d’épreuve
relatif à la peine que le délinquant purgeait déjà lorsqu’il s’est vu imposer
la peine supplémentaire;
b) le temps d’épreuve relatif à
cette peine supplémentaire.
(2) Par dérogation au paragraphe
(1), le délinquant dont la peine d’emprisonnement n’est pas expirée et qui
est condamné à une peine supplémentaire à purger après une partie de la peine
en cours n’est admissible à la libération conditionnelle totale qu’à la plus
éloignée des dates suivantes :
a) la date à laquelle il a
accompli le temps d’épreuve sur la peine qu’il purge au moment de la
condamnation à la peine supplémentaire;
b) la date à laquelle il a
accompli le temps d’épreuve sur la peine supplémentaire, déterminé à compter
de la date de la condamnation à celle-ci;
c) la date à laquelle il a
accompli le temps d’épreuve requis par rapport à la peine d’emprisonnement
déterminée conformément au paragraphe 139(1).
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The following legislative provisions of
the Youth
Criminal Justice Act, SC 2002, c 1 [YCJA] are relevant:
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42. (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:
…
(q)
order the young person to serve a sentence not to exceed
(i)
in the case of first degree murder, ten 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 six years
from the date of committal, and
(B)
a placement under conditional supervision to be served in the community in
accordance with section 105, and
(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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42. (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:
[...]
q) l’imposition par ordonnance :
(i) dans le cas d’un meurtre au
premier degré, d’une peine maximale de dix ans consistant, d’une part, en une
mesure de placement sous garde, exécutée de façon continue, pour une période
maximale de six 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,
(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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The following provision of the Criminal
Code,
RS, c C-34, s 1 [Code] are relevant:
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743.5
(1) If a
young person or an adult is or has been sentenced to a term of imprisonment
for an offence while subject to a disposition made under paragraph 20(1)(k)
or (k.1) of the Young Offenders Act, chapter Y-1 of the Revised
Statutes of Canada, 1985, or a youth sentence imposed under paragraph
42(2)(n), (o), (q) or (r) of the Youth
Criminal Justice Act, the remaining portion of the disposition or youth
sentence shall be dealt with, for all purposes under this Act or any other
Act of Parliament, as if it had been a sentence imposed under this Act.
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743.5 (1) Lorsqu’un
adolescent ou un adulte assujetti à une décision rendue au titre des alinéas
20(1)k) ou k.1) de la Loi sur les jeunes contrevenants,
chapitre Y-1 des Lois révisées du Canada (1985), ou à une peine
spécifique imposée en vertu des alinéas 42(2)n), o), q)
ou r) de la Loi sur le système de justice pénale pour les
adolescents est ou a été condamné à une peine d’emprisonnement pour une
infraction, le reste de la décision prononcée ou de la peine spécifique
imposée est purgée, pour l’application de la présente loi ou de toute autre
loi fédérale, comme si elle avait été prononcée ou imposée au titre de la
présente loi.
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