Erasmo v. Canada (Attorney General), (2015) 473 N.R. 245 (FCA)

• Judge: Stratas, Scott and Boivin, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 06, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 473 N.R. 245 (FCA);2015 FCA 129

Erasmo v. Can. (A.G.) (2015), 473 N.R. 245 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2015] N.R. TBEd. MY.023

Robbie Richard Erasmo (appellant) v. The Attorney General of Canada (respondent)

(A-518-14; 2015 FCA 129; 2015 CAF 129)

Indexed As: Erasmo v. Canada (Attorney General)

Federal Court of Appeal

Stratas, Scott and Boivin, JJ.A.

May 20, 2015.

Summary:

The applicant applied for judicial review of his sentence calculation issued by a Sentence Manager at Stony Mountain Institution. Pursuant to s. 743.5(1) of the Criminal Code, since the applicant had received an adult sentence while still subject to a Youth Criminal Justice Act (YCJA) sentence, the remainder of the YCJA sentence, including both the remaining custodial and Community Supervision Order portions, had to be dealt with as an adult sentence. As the applicant was subject to two sentences, they were merged pursuant to s. 139(1) of the Corrections and Conditional Release Act, to be deemed one adult sentence. The process was triggered automatically by statute. The applicant sought an order that his parole eligibility dates and statutory release date be recalculated so as to exclude the three year portion of his youth sentence to be served in the community.

The Federal Court, in a decision reported at (2014), 468 F.T.R. 188, dismissed the application. The applicant appealed.

The Federal Court of Appeal dismissed the appeal.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The applicant applied for judicial review of his sentence calculation issued by a Sentence Manager at Stony Mountain Institution - Pursuant to s. 743.5(1) of the Criminal Code, since the applicant had received an adult sentence while still subject to a Youth Criminal Justice Act (YCJA) sentence, the remainder of the YCJA sentence, including both the remaining custodial and Community Supervision Order portions, had to be dealt with as an adult sentence - As the applicant was subject to two sentences, they were merged pursuant to s. 139(1) of the Corrections and Conditional Release Act, to be deemed one adult sentence - The applicant sought an order that his parole eligibility dates and statutory release date be recalculated so as to exclude the three year portion of his youth sentence to be served in the community - He raised the issue of the constitutionality of the statutory provisions for the first time - The Federal Court dismissed the application - On appeal, the Federal Court of Appeal stated that "... no one takes issue with the mechanical calculation of the Sentence Manager in accordance with the provisions of the legislation. Rather, the appellant says that the Sentence Manager should have disregarded the merger provisions because they contravene the Charter and are of no force or effect. In such a case, especially where, as here, no findings of fact or mixed facts and law were in dispute, the standard of review is presumed to be correctness." - See paragraphs 25 to 30.

Administrative Law - Topic 3345.2

Judicial review - General - Practice - Issues not raised before tribunal - The applicant applied for judicial review of his sentence calculation issued by a Sentence Manager at Stony Mountain Institution - Pursuant to s. 743.5(1) of the Criminal Code, since the applicant had received an adult sentence while still subject to a Youth Criminal Justice Act (YCJA) sentence, the remainder of the YCJA sentence, including both the remaining custodial and Community Supervision Order portions, had to be dealt with as an adult sentence - As the applicant was subject to two sentences, they were merged pursuant to s. 139(1) of the Corrections and Conditional Release Act, to be deemed one adult sentence - The applicant sought an order that his parole eligibility dates and statutory release date be recalculated so as to exclude the three year portion of his youth sentence to be served in the community - He raised the issue of the constitutionality of the statutory provisions for the first time - The Federal Court dismissed the application - On appeal, the Federal Court of Appeal stated "[t]he general rule is that, except in cases of urgency, constitutional questions cannot be raised for the first time in the reviewing court if the administrative decision-maker under review had the power and the practical capability to decide them." - Here, the Sentence Manager had to interpret and apply statutory provisions - If those provisions were ambiguous, the Sentence Manager had to resolve the ambiguity - Thus, the Sentence Manager had the implied power to consider questions of law and could consider constitutional issues - However, the Sentence Manager did not have the practical capability to decide the constitutional questions (i.e., not an adequate and available forum) - The applicant was in custody at the time he received the Sentence Manager's decision, his ability to deal directly with the Sentence Manager was open to question, the Sentence Manager made the decision without having to call for submissions, and the court was not convinced that the Sentence Manager, having decided the matter, had a power of reconsideration on legal matters - In these circumstances, the constitutional issue could be raised for the first time in the Federal Court - See paragraphs 31 to 38.

Administrative Law - Topic 3345.2

Judicial review - General - Practice - Issues not raised before tribunal - [See fifth Criminal Law - Topic 5670.7 ].

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Administrative Law - Topic 3202 ].

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - [See first and sixth Criminal Law - Topic 5670.7 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle - [See second Criminal Law - Topic 5670.7 ].

Civil Rights - Topic 3764

Punishment - General - Double punishment prohibited (Charter, s. 11(h)) - [See fifth Criminal Law - Topic 5670.7 ].

Civil Rights - Topic 3765

Punishment - General - Variation of punishment after offence - Benefit of lesser punishment - [See third Criminal Law - Topic 5670.7 ].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice - [See sixth Criminal Law - Topic 5670.7 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See fourth Criminal Law - Topic 5670.7] .

Civil Rights - Topic 8416

Canadian Charter of Rights and Freedoms - Criminal proceedings - Right to lesser punishment where punishment varied - [See third Criminal Law - Topic 5670.7 ].

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - [See first Administrative Law - Topic 3345.2 and fifth Criminal Law - Topic 5670.7 ].

Criminal Law - Topic 5670.7

Punishments (sentence) - Imprisonment and parole - Statutory release date - The applicant applied for judicial review of his sentence calculation issued by a Sentence Manager at Stony Mountain Institution - Pursuant to s. 743.5(1) of the Criminal Code, since the applicant had received an adult sentence while still subject to a Youth Criminal Justice Act (YCJA) sentence, the remainder of the YCJA sentence, including both the remaining custodial and Community Supervision Order portions, had to be dealt with as an adult sentence - As the applicant was subject to two sentences, they were merged pursuant to s. 139(1) of the Corrections and Conditional Release Act, to be deemed one adult sentence - The applicant sought an order that his parole eligibility dates and statutory release date be recalculated so as to exclude the three year portion of his youth sentence to be served in the community - He raised the issue of the constitutionality of the statutory provisions for the first time - The Federal Court dismissed the application - On appeal, the Federal Court of Appeal stated that "Today's merger provisions create certainty and order by applying one clear rule to all. They automatically merge the youth sentence with the adult sentence, allowing the offender to benefit from all available forms of conditional release under the Corrections and Conditional Release Act. True, the remaining portion of the youth disposition is treated as an adult sentence under the merger provisions, but the duration of the youth sentence remains unchanged. In this case, for example, the appellant's seven-year sentence as a youth offender remains at seven years. Only the conditions of the sentence change and, as we have seen, changes in the conditions of the sentence do not implicate the principles of fundamental justice. Indeed, as we have seen, they can reduce the amount of time an offender must spend in full custody." - See paragraph 50.

Criminal Law - Topic 5670.7

Punishments (sentence) - Imprisonment and parole - Statutory release date - The applicant applied for judicial review of his sentence calculation issued by a sentence Manager at Stony Mountain Institution - Pursuant to s. 743.5(1) of the Criminal Code, since the applicant had received an adult sentence while still subject to a Youth Criminal Justice Act (YCJA) sentence, the remainder of the YCJA sentence, including both the remaining custodial and Community Supervision Order portions, had to be dealt with as an adult sentence - As the applicant was subject to two sentences, they were merged pursuant to s. 139(1) of the Corrections and Conditional Release Act (CCRA), to be deemed one adult sentence - This process was triggered automatically by statute - The applicant sought an order that his parole eligibility dates and statutory release date be recalculated so as to exclude the three year portion of his youth sentence to be served in the community - The Crown conceded that the applicant's s. 7 Charter rights were engaged by the change in form of the applicant's sentence - The Federal Court stated that "The process of merging youth and adult sentences under a single sentence managed under the adult CCRA regime is an automatic one, put into motion upon receiving an adult sentence when someone is in the Applicant's situation. While ... there is no hearing to challenge the fairness of the process, the process itself is a basic calculation based on sentences established in previous hearings, that themselves provided the Applicant with adequate notice of procedural fairness, as required by the principles of fundamental justice." - The court rejected the argument that the scheme was overly broad to achieve the legislation's aim - The legislators considered situations like the applicant's in establishing the scheme, and tailored it to apply - On appeal, the Federal Court of Appeal agreed that the provisions were not overbroad and that a hearing was not necessary - See paragraphs 31 to 57.

Criminal Law - Topic 5670.7

Punishments (sentence) - Imprisonment and parole - Statutory release date - The applicant applied for judicial review of his sentence calculation issued by a Sentence Manager at Stony Mountain Institution - Pursuant to s. 743.5(1) of the Criminal Code, since the applicant had received an adult sentence while still subject to a Youth Criminal Justice Act (YCJA) sentence, the remainder of the YCJA sentence, including both the remaining custodial and Community Supervision Order portions, had to be dealt with as an adult sentence - As the applicant was subject to two sentences, they were merged pursuant to s. 139(1) of the Corrections and Conditional Release Act (CCRA), to be deemed one adult sentence - This process was triggered automatically by statute - The applicant sought an order that his parole eligibility dates and statutory release date be recalculated so as to exclude the three year portion of his youth sentence to be served in the community - At issue, inter alia, was whether ss. 75, 196 and 197 of the Safe Streets and Communities Act (SSCA) amending ss. 2, 99(2)(b) and 119.2 of the CCRA violated s. 11(i) of the Charter - The Federal Court held that s. 11(i) of the Charter (benefit of lesser punishment) was not violated - The timing of the amendments to the CCRA through the SSCA was not relevant here - The relevant and operative portions of legislation were s. 734.5 of the Criminal Code and s. 139 of the CCRA - Since s. 743.5 applied to the applicant, it was unnecessary to consider the temporal effect of the amendments to the CCRA - On appeal, the Federal Court of Appeal agreed that s. 11(i) of the Charter was not infringed for substantially the same reasons given by the Federal Court - See paragraph 59.

Criminal Law - Topic 5670.7

Punishments (sentence) - Imprisonment and parole - Statutory release date - The applicant applied for judicial review of his sentence calculation issued by a Sentence Manager at Stony Mountain Institution - Pursuant to s. 743.5(1) of the Criminal Code, since the applicant had received an adult sentence while still subject to a Youth Criminal Justice Act (YCJA) sentence, the remainder of the YCJA sentence, including both the remaining custodial and Community Supervision Order portions, had to be dealt with as an adult sentence - As the applicant was subject to two sentences, they were merged pursuant to s. 139(1) of the Corrections and Conditional Release Act (CCRA), to be deemed one adult sentence - This process was triggered automatically by statute - The applicant sought an order that his parole eligibility dates and statutory release date be recalculated so as to exclude the three year portion of his youth sentence to be served in the community - The Crown conceded that the applicant's s. 7 Charter rights were engaged by the change in form of the applicant's sentence - The Federal Court applied the Oakes analysis and held that the legislation was saved under s. 1 - The applicant conceded the pressing and substantial goal of s. 743.5 of the Criminal Code and s. 139 of the CCRA - It was meant to avoid the issues that arose when one inmate was subject to two different regimes in serving sentences under the YCJA as well as the CCRA, to bring uniformity, and clarity for inmates in how their sentences were calculated and governed - The objectives of the scheme were rationally connected to their goal - The scheme was minimally impairing - The applicant's sentence was ultimately unchanged - It was only the manner in which it was to be served that was changed - On appeal, the Federal Court of Appeal held that it was not necessary to consider whether the merging provisions were saved under s. 1 - However, were it necessary, it would find that the provisions were saved and substantially adopt the Federal Court's reasons - Further, it added that the objectives of the merger provisions, namely to administer the sentences under a single, clear set of rules in the CCRA, eliminate potential conflicts between the youth and adult regimes and preserve the entirety of the youth sentence, were pressing and substantial under the justification test in Oakes - See paragraphs 62 and 63.

Criminal Law - Topic 5670.7

Punishments (sentence) - Imprisonment and parole - Statutory release date - The applicant applied for judicial review of his sentence calculation issued by a Sentence Manager at Stony Mountain Institution - Pursuant to s. 743.5(1) of the Criminal Code, since the applicant had received an adult sentence while still subject to a Youth Criminal Justice Act (YCJA) sentence, the remainder of the YCJA sentence, including both the remaining custodial and Community Supervision Order portions, had to be dealt with as an adult sentence - As the applicant was subject to two sentences, they were merged pursuant to s. 139(1) of the Corrections and Conditional Release Act (CCRA), to be deemed one adult sentence - This process was triggered automatically by statute - The applicant sought an order that his parole eligibility dates and statutory release date be recalculated so as to exclude the three year portion of his youth sentence to be served in the community - The Federal Court dismissed the application - The applicant appealed and, for the first time, submitted that, having been found guilty of the offence of second degree murder and sentenced for it, he should not be resentenced (Charter, s. 11(h)) - The Federal Court of Appeal held that it could entertain the new submission because the evidentiary record was complete and no additional evidence would have been necessary to hear it below - The court held that the accused had not been resentenced - He had been sentenced as a youth to seven years for the offence of second degree murder and the merger provisions left that sentence in place - Only the conditions of his sentence were changed and that was not constitutionally objectionable - See paragraph 60.

Criminal Law - Topic 5670.7

Punishments (sentence) - Imprisonment and parole - Statutory release date - The applicant applied for judicial review of his sentence calculation issued by a Sentence Manager at Stony Mountain Institution - Pursuant to s. 743.5(1) of the Criminal Code, since the applicant had received an adult sentence while still subject to a Youth Criminal Justice Act (YCJA) sentence, the remainder of the YCJA sentence, including both the remaining custodial and Community Supervision Order portions, had to be dealt with as an adult sentence - As the applicant was subject to two sentences, they were merged pursuant to s. 139(1) of the Corrections and Conditional Release Act (CCRA), to be deemed one adult sentence - This process was triggered automatically by statute - The applicant sought an order that his parole eligibility dates and statutory release date be recalculated so as to exclude the three year portion of his youth sentence to be served in the community - The Federal Court dismissed the application - The applicant appealed, submitting, inter alia, that the merger provisions imposed a form of absolute liability upon him contrary to the principles of fundamental justice - The Federal Court of Appeal rejected the submission - In both the youth and the adult proceedings, the Crown bore the burden of proving mens rea in order to obtain convictions - The merger provisions were not based on any additional fault or offence - They were only an administrative means by which an offender could be dealt with under one set of rules - See paragraph 58.

Cases Noticed:

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 38].

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201; 2004 SCC 54, refd to. [para. 27].

Delios v. Canada (Attorney General) - see Canada (Attorney General) v. Delios.

Canada (Attorney General) v. Delios (2015), 472] N.R. 171; 2015 FCA 117, refd to. [para. 29].

Dunsmuir v. New Brunswick - see New Brunswick (Board of Management) v. Dunsmuir.

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 30].

Okwuobi v. Lester B. Pearson School Board - see Okwuobi v.Quebec (Attorney General).

Casimir v. Quebec (Attorney General) - see Okwuobi v.Quebec (Attorney General).

Zorrilla v. Quebec (Attorney General) - see Okwuobi v.Quebec (Attorney General).

Okwuobi v.Quebec (Attorney General), [2005] 2 S.C.R. 257; 331 N.R. 300; 2005 SCC 16, refd to. [para. 33].

Forest Ethics Advocacy Association et al. v. National Energy Board et al. (2014), 465 N.R. 152; 2014 FCA 245, refd to. [para. 33].

Nova Scotia (Workers' Compensation Board) v. Martin Nova Scotia (Workers' Compensation Board) v. Laseur - see Workers' Compensation Board (N.S.) v. Martin et al.

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 3].

R. v. B.M.P.; R. v. B.V.N. - see R. v. B.W.P.; R. v. B.V.N.

R. v. B.W.P.; R. v. B.V.N., [2006] 1 S.C.R. 941; 350 N.R. 1; 205 Man.R.(2d) 282; 375 W.A.C. 282; 227 B.C.A.C. 1; 374 W.A.C. 1; 2006 SCC 27, refd to. [para. 41].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 46 C.R.(4th) 269; 105 C.C.C.(3d) 327, refd to. [para. 43].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243; 20 C.R.(4th) 57; 80 C.C.C. (3d) 492, refd to. [para. 43].

R. v. D.B. (2008), 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 43].

R. v. Caine - see R. v. Malmo-Levine (D.) et al.

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 45].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 45].

Mooring v. National Parole Board et al., [1996] 1 S.C.R. 75; 192 N.R. 161; 70 B.C.A.C. 1; 115 W.A.C. 1, refd to. [para. 46].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 46].

Federation of Law Societies of Canada v. Canada (Attorney General) (2015), 467 N.R. 243; 365 B.C.A.C. 3; 627 W.A.C. 3; 2015 SCC 7, refd to. [para. 46].

Kazemi Estate v. Islamic Republic of Iran, [2014] 3 S.C.R. 176; 463 N.R. 1; 2014 SCC 62, refd to. [para. 46].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2014] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 46].

Deacon v. Canada (Attorney General), [2007] F.C.R. 607; 352 N.R. 380; 143 C.R.R.(2d) 93; 2006 FCA 265, refd to. [para. 48].

Canada (Attorney General) v. Bedford - see Bedford et al. v. Canada (Attorney General).

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 303 C.C.C.(3d) 146; 2013 SCC 72, refd to. [para. 56].

Cooper v. Canada (Attorney General) (2002), 295 N.R. 184; 2002 FCA 374, refd to. [para. 57].

Capra v. Canada (Attorney General), [2009] 3 F.C. 461; 335 F.T.R. 299; 2008 FC 1212, refd to. [para. 57].

Quan v. Cusson - see Cusson v. Quan et al.

Cusson v. Quan et al., [2009] 3 S.C.R. 712; 397 N.R. 94; 258 O.A.C. 378; 2009 SCC 62, refd to. [para. 60].

Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd. - see Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2).

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2), [2002] 1 S.C.R. 678; 283 N.R. 233; 299 A.R. 201; 266 W.A.C. 201; 2002 SCC 19, refd to. [para. 63].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 63].

Statutes Noticed:

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 139(1) [para. 17].

Criminal Code, R.S.C. 1985, c. C-46, sect. 743.5(1) [para. 18].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2009) (Looseleaf, consulted May 11, 2015), ch. 13, pp. 79 to 81 [para. 33].

Counsel:

Leonard J. Tailleur, for the appellant;

Scott Farlinger and Alexander Menticoglou, for the respondent.

Solicitors of Record:

Leonard J. Tailleur, Winnipeg, Manitoba, for the appellant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard at Winnipeg, Manitoba, on May 6, 2015, by Stratas, Scott and Boivin, JJ.A., of the Federal Court of Appeal. Stratas, J.A., delivered the following decision for the court at Ottawa, Ontario, on May 20, 2015.