Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Gonthier, Cory, Iacobucci and Major JJ.
on appeal from the court of appeal for new brunswick
Criminal law ‑‑ Sentencing ‑‑ Trial judge ordering half of sentence to be served before parole eligibility ‑‑ Whether or not order subject to review by Court of Appeal ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 673 , 674 , 675(1) (b), 741.2 .
The trial judge, in sentencing the appellant for forcible confinement, assault, uttering a death threat, theft and assault with a weapon, ordered that he serve one half of the sentence before being eligible for parole. The order was made under s. 741.2 of the Criminal Code . The Court of Appeal denied, without reasons, appellant's application for leave to appeal against his sentence including the order made pursuant to s. 741.2. Leave was then granted to this Court. At issue is whether courts of appeal have jurisdiction to review orders made under s. 741.2 as part of the "sentence" imposed by the trial judge. Section 674 provides that no proceedings other than those set forth in the Code shall be taken by way of appeal in proceedings in respect of indictable offences. Pursuant to s. 675(1)(b), a person convicted of an indictable offence may appeal to the court of appeal "against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law". The difficulty arises in determining what constitutes a "sentence" under s. 675(1)(b). Section 673 provides that "sentence" in this part of the Code includes a variety of orders, declarations and dispositions provided for under various Code provisions. The list does not mention orders made under s. 741.2.
Held: The appeal should be allowed.
Courts of appeal have jurisdiction to review orders made under s. 741.2 of the Code as part of "sentence" under ss. 673 and 675(1)(b).
The lack of reasons is not grounds for barring review since appeals under the Code are taken not from the reasons of a lower court, but from its order. This Court has jurisdiction to review the discretionary decisions of lower courts though this is a jurisdiction that should only be exercised sparingly.
Section 673 of the Code provides that a sentence "includes" the listed orders, not that it is "defined" by them, or that it "means" only them. A plain reading of the word "includes" in this context suggests that the list of reviewable orders under s. 673 is not exhaustive. Moreover, on a common sense understanding of the word "sentence", orders made under s. 741.2 should qualify because they clearly affect the length of time that a sentence is served and are relevant to the disposition of the trial judge following conviction.
A section 741.2 order is not an administrative parole determination, within the exclusive jurisdiction and absolute discretion of the Parole Board, but is instead included in the Code as part of a trial judge's authority at sentencing. Parliament's decision to place this power in the Code rather than in the Corrections and Conditional Release Act should not be ignored. Section 741.2 explicitly allows a trial judge to reduce the discretion of the Parole Board in certain circumstances.
Two of the offences here, theft (s. 334(b)(i)) and uttering a threat (s. 264.1(1)(a)), are not listed in Schedules I and II of the Corrections and Conditional Release Act and should not have been included in the s. 741.2 order.
Cases Cited
Considered: R. v. Vaillancourt (1989), 49 C.C.C. (3d) 544; referred to: R. v. Laba, [1994] 3 S.C.R. 965; MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; R. v. Watson (1993), 142 N.B.R. (2d) 327; R. v. Landry (1993), 143 N.B.R. (2d) 183; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Pawlyk (1991), 72 Man. R. (2d) 1; R. v. Goulet (1995), 22 O.R. (3d) 118; R. v. Steel, [1993] O.J. No. 2563 (QL); R. v. Warren (1994), 128 Sask. R. 81; R. v. Forsythe (1994), 41 B.C.A.C. 294; R. v. Viscount, [1994] A.J. No. 145 (QL); R. v. Boone (1993), 88 Man. R. (2d) 110; R. v. Cory (1993), 88 Man. R. (2d) 183; Dankyi v. R., [1993] R.J.Q. 2767; R. v. Leblanc (1993), 59 Q.A.C. 250; R. v. Hynes (1993), 123 N.S.R. (2d) 447, leave to appeal dismissed, [1994] 1 S.C.R. viii; R. v. Lambert (1994), 123 Nfld. & P.E.I.R. 347, leave to appeal dismissed, [1995] 1 S.C.R. x; R. v. Richards (1994), 122 Nfld. & P.E.I.R. 89; R. v. Ferris (1994), 153 N.B.R. (2d) 241; R. v. McIntyre, [1995] N.B.J. No. 178 (QL); R. v. Canney, [1995] N.B.J. No. 248 (QL).
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , s. 11 ( i ) .
Corrections and Conditional Release Act , S.C. 1992, c. 20 , Schedules I and II.
Criminal Code , R.S.C., 1985, c. C‑46 , ss. 264.1(1) (a) [ad. c. 27 (1st Supp.), s. 38], 334(b)(i), 673(a) [rep. & sub. S.C. 1992, c. 1, s. 58 (Sch. I, item 12)], (b) [rep. & sub. S.C. 1993, c. 45, s. 10], (c) [rep. & sub. S.C. 1992, c. 1, s. 58 (Sch. I, item 12)], 674, 675(1)(b), 741.2 [ad. S.C. 1992, c. 20 , s. 203], 744 [rep. & sub. S.C. 1992, c. 11, s. 16].
Authors Cited
Canada. House of Commons. Bill C‑45, An Act to amend the Corrections and Conditional Release Act, the Criminal Code , the Criminal Records Act, the Prisons and Reformatories Act and the Transfer of Offenders Act, 1st Sess., 35th Parl., 1994 (1st reading June 21, 1994), ss. 70, 71.
APPEAL from a judgment of the New Brunswick Court of Appeal dismissing an application for leave to appeal an order as to parole eligibility made during sentencing. Appeal allowed.
Brian B. Doucet, for the appellant.
Mary Elizabeth Beaton, for the respondent.
The judgment of the Court was delivered by
1 La Forest J. -- The issue in this case is whether courts of appeal have jurisdiction to review orders made under s. 741.2 of the Criminal Code , R.S.C., 1985, c. C-46 , as part of the "sentence" imposed by the trial judge.
2 The facts are not in dispute. The appellant pleaded guilty in the Provincial Court of New Brunswick before McKee Prov. Ct. J. on one count of forcible confinement, one count of assault, one count of uttering a death threat, one count of theft and two counts of assault with a weapon. He was sentenced in August 1993 to a total of 3 years and 9 months imprisonment. Pursuant to s. 741.2 of the Code, the trial judge ordered that the appellant serve one half of his sentence before being eligible for parole.
3 Section 741.2 of the Criminal Code provides as follows:
741.2 Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act , where an offender is sentenced, after the coming into force of this section, to a term of imprisonment of two years or more on conviction for one or more offences set out in Schedules I and II to that Act that were prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offences and the character and circumstances of the offender, that the expression of society's denunciation of the offences or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.
4 The appellant applied for leave to appeal against his sentence including the order made pursuant to s. 741.2 of the Code. The Court of Appeal of New Brunswick denied the appellant leave to appeal and gave no reasons. Leave was then granted to this Court. At the conclusion of the hearing in this Court, Lamer C.J. issued judgment allowing the appeal, on the basis that an appeal lies to a provincial court of appeal from an order made under s. 741.2 of the Code. The record was referred back to the Court of Appeal of New Brunswick for reconsideration of the application for leave to appeal. Reasons were to follow. These are the reasons.
5 I should state at the outset that it is my view that courts of appeal have jurisdiction to review orders made under s. 741.2 of the Code as part of "sentence" under ss. 673 and 675(1)(b) of the Code. Before reaching this substantive issue, however, a preliminary jurisdictional matter must be addressed.
6 The respondent argued that this Court should not hear this appeal since it involves the review of a discretionary decision of a lower court, made without reasons. The lack of reasons is not grounds for barring review, since appeals under the Code are taken not from the reasons of a lower court, but from its order; see R. v. Laba, [1994] 3 S.C.R. 965. And it is clear from the decision of this Court in MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, that the Court has jurisdiction to review the discretionary decisions of lower courts, even if, as was emphasized in that case, this is a jurisdiction that should only be exercised sparingly.
7 It is true, as the respondent pointed out, that we cannot be sure in this case that the New Brunswick Court of Appeal refused the appellant leave to appeal his sentence on the basis of a want of jurisdiction respecting the order made under s. 741.2. Still, in light of other judgments issued by that court, there is reason to believe that leave to appeal may have been refused at least in part on this basis. In both R. v. Watson (1993), 142 N.B.R. (2d) 327, and R. v. Landry (1993), 143 N.B.R. (2d) 183, the Court of Appeal held that it did not have jurisdiction to review orders made under s. 741.2. The question of whether such orders can be reviewed by courts of appeal has provoked some confusion in lower courts across the country, and the case at bar presents us with an appropriate opportunity to resolve the issue, which is clearly an important question of law relating to the sentencing process, and therefore a matter upon which this Court should pronounce; see R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 397.
8 The argument respecting the jurisdiction of courts of appeal to review s. 741.2 orders turns on the application of ss. 673-675 of the Code. Section 674 provides that no proceedings other than those set forth in the Code "shall be taken by way of appeal in proceedings in respect of indictable offences". Pursuant to s. 675(1)(b), a person convicted of an indictable offence may appeal to the court of appeal "against the sentence passed by the trial court, with leave of the court of appeal or a judge thereof unless that sentence is one fixed by law". The difficulty arises in determining what constitutes a "sentence" under s. 675(1)(b). Section 673 provides that "sentence" in this part of the Code includes a variety of orders, declarations and dispositions provided for under various Code provisions. The list does not mention orders made under s. 741.2.
9 It should first be observed that s. 673 provides that a sentence "includes" the listed orders, not that it is "defined" by them, or that it "means" only them. A plain reading of the word "includes" in this context suggests that the list of reviewable orders under s. 673 is not exhaustive. Moreover, on a common sense understanding of the word "sentence" it seems clear that orders made under s. 741.2 should qualify. For these orders clearly affect the length of time that a sentence is served, and are relevant to the disposition of the trial judge following conviction; see R. v. Pawlyk (1991), 72 Man. R. (2d) 1 (C.A.), at p. 6. It seems to me artificial to suggest that a s. 741.2 order is not part of the "sentence" imposed on an offender.
10 The respondent argued that a s. 741.2 order is analogous to a parole order made under the Corrections and Conditional Release Act , S.C. 1992, c. 20 . As such, it is simply a judicial, as opposed to a typically administrative, power to determine parole, and is not part of a formal sentence. Since the fitness for eligibility of parole is generally not remediable under the Corrections and Conditional Release Act , the respondent submitted, it was unnecessary for a trial judge's decision made under s. 741.2 to be remediable. Parliament has been consistent, this argument runs, in giving the Parole Board exclusive jurisdiction and absolute discretion in relation to the granting of parole under the Corrections and Conditional Release Act , and in not providing a right of appeal under the Criminal Code for a judicial decision regarding parole eligibility orders made under s. 741.2.
11 My difficulty with this argument is that the s. 741.2 order is not an administrative parole determination, within the exclusive jurisdiction and absolute discretion of the Parole Board, but is instead included in the Code as part of a trial judge's authority. Parliament's decision to place this power in the Code rather than in the Corrections and Conditional Release Act should not be ignored. The inclusion of s. 741.2 of the Code should, in my view, be understood to indicate an intention on the part of Parliament explicitly to allow a trial judge to reduce the discretion of the Parole Board in certain circumstances, by requiring an accused to serve one half of his or her term of imprisonment before being able to seek parole. The point is that under s. 741.2 the determination of conditional release eligibility has now become a factor in sentencing, and not simply a matter exclusively in the hands of the Parole Board. I agree with the following comments of Griffiths J.A. in R. v. Goulet (1995), 22 O.R. (3d) 118 (C.A.), at pp. 122-23:
Section 741.2 clearly operates as an exception to the general statutory provision governing parole eligibility [s. 120(1) of the Corrections and Conditional Release Act , which requires generally that one-third of a sentence be served before an application for parole] and contemplates a further restriction on the offender's liberty beyond that which normally flows from the prison term imposed by the sentencing judge. An order made under s. 741.2 restricting eligibility for parole increases the punishment imposed by the sentence in a very real way. In making an order under s. 741.2 increasing parole ineligibility the sentencing judge is looking into the future and declaring that the offender should not even be considered for parole during some part of what would otherwise be his or her period of parole eligibility. A s. 741.2 order pre-empts the normal role of the Parole Board during the added period of parole ineligibility and replaces the case-by-case exercise of that expert tribunal's discretion with an absolute order made years before the effect of that order is felt.
12 In making its case, the respondent also relied on the decision of the Ontario Court of Appeal in R. v. Vaillancourt (1989), 49 C.C.C. (3d) 544, in which it was concluded that the Court of Appeal did not have jurisdiction to review a jury determination respecting parole made under s. 745 of the Code. That section allows an offender who has served 15 years of a sentence for murder to apply for a jury determination as to whether his or her parole ineligibility period should be reduced below the 25-year statutory minimum. The Court of Appeal held that such a determination could not be said to constitute part of the sentencing process and therefore was not appealable as a "sentence" under s. 675(1)(b). In my view this case is distinguishable from the case at bar. The determination of a jury respecting parole 15 years after an offender's conviction is, I agree, difficult to cast as part of the sentence imposed by the trial judge upon conviction. By contrast, an order made under s. 741.2 is clearly part of the punishment meted out by the trial judge; as such, I believe it is appealable under s. 675(1)(b). It should also be noted that parole ineligibility orders made under s. 744 of the Code are listed as part of sentence under s. 673. Section 744 provides that a trial judge at the time of sentencing may increase the parole ineligibility period of an offender convicted of second degree murder. This power is analogous to that granted a trial judge under s. 741.2, and in my view the inclusion of s. 744 orders as part of sentence under s. 673 is indicative of Parliament's desire that other similar orders should also be held to constitute part of sentence.
13 In concluding that courts of appeal have jurisdiction to review orders under s. 741.2 of the Code, I endorse the view taken by several courts of appeal across the country. The Ontario Court of Appeal has explicitly held that it has the jurisdiction to review s. 741.2 orders as part of a "sentence" under the Code; see R. v. Steel, [1993] O.J. No. 2563, and Goulet, supra. The Saskatchewan Court of Appeal also seemed to have been of this view in R. v. Warren (1994), 128 Sask. R. 81, although in that case the Crown conceded the court's jurisdiction.
14 In British Columbia, Alberta, Manitoba, Quebec and Nova Scotia, courts of appeal have assumed the jurisdiction to hear appeals from s. 741.2 orders without ruling on the issue; see for example R. v. Forsythe (1994), 41 B.C.A.C. 294, R. v. Viscount, [1994] A.J. No. 145, R. v. Boone (1993), 88 Man. R. (2d) 110, R. v. Cory (1993), 88 Man. R. (2d) 183, Dankyi v. R., [1993] R.J.Q. 2767, R. v. Leblanc (1993), 59 Q.A.C. 250, and R. v. Hynes (1993), 123 N.S.R. (2d) 447, application for leave to appeal dismissed, [1994] 1 S.C.R. viii. While ruling on the application of s. 11( i ) of the Canadian Charter of Rights and Freedoms to s. 741.2 orders, the Newfoundland Court of Appeal has specifically refrained from deciding the jurisdictional issue; see R. v. Lambert (1994), 123 Nfld. & P.E.I.R. 347, application for leave to appeal dismissed, [1995] 1 S.C.R. x.
15 Only the New Brunswick and Prince Edward Island Courts of Appeal have held that they do not have jurisdiction to hear an appeal from an order made under s. 741.2 because this order is not a "sentence" under s. 673 of the Code, but is instead an order made after sentence; see Watson, supra, and Landry, supra, and R. v. Richards (1994), 122 Nfld. & P.E.I.R. 89. A number of New Brunswick Court of Appeal decisions made since the present case was decided would appear to suggest, however, that its view that it does not have jurisdiction to review s. 741.2 orders may be restricted solely to situations where an appeal on the merits of the s. 741.2 order alone is proposed. In R. v. Ferris (1994), 153 N.B.R. (2d) 241, and R. v. McIntyre, [1995] N.B.J. No. 178, the Court of Appeal granted leave to decide a s. 11( i ) Charter issue relating to the application of s. 741.2, but in doing so, it specifically upheld its earlier decision in Watson that it lacked jurisdiction to review s. 741.2 orders alone on their merits. More recently, in R. v. Canney, [1995] N.B.J. No. 248, the Court of Appeal set aside a s. 741.2 order, but it did so in the context of varying the entire sentence imposed by the trial judge.
16 With respect, it is my view, for the reasons stated above, that the New Brunswick and Prince Edward Island Courts of Appeal are simply wrong to hold that they do not have jurisdiction to review s. 741.2 orders on their merits. The soundness of the view that courts of appeal should be understood to have the jurisdiction to review s. 741.2 orders is confirmed by a recently proposed amendment to the Criminal Code to this effect. Bill C-45, An Act to amend the Corrections and Conditional Release Act, the Criminal Code , the Criminal Records Act, the Prisons and Reformatories Act and the Transfer of Offenders Act, was reported to the House of Commons on March 22, 1995 after being considered by the Standing Committee on Justice and Legal Affairs. It specifically provides for a right of appeal in the Criminal Code respecting orders made under s. 741.2. At the time the present case was heard, Bill C-45 had not yet received second reading in the House. It contains the following provisions:
70. Section 675 of the Criminal Code is amended by adding the following after subsection (2):
(2.1) A person against whom an order under section 741.2 has been made may appeal to the court of appeal against the order.
71. Section 676 of the Act is amended by adding the following after subsection (4):
(5) The Attorney General or counsel instructed by the Attorney General for the purpose may appeal to the court of appeal against the decision of the court not to make an order under section 741.2.
17 There is no need for me to review the merits of the s. 741.2 order made by the trial judge in this case, as we have referred the matter back to the Court of Appeal for reconsideration of the application for leave to appeal. I do wish to note, however, that two of the offences of which the appellant was convicted, theft under s. 334(b)(i) of the Code and uttering a threat under s. 264.1(1)(a) of the Code, are not listed as Schedules I and II of the Corrections and Conditional Release Act and thus should not have been included in the s. 741.2 order.
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