Erasmo v. Canada (Attorney General), 2014 FC 1096

• Judge: Manson, J.
• Court: Federal Court (Canada)
• Case Date: November 12, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2014 FC 1096;(2014), 468 F.T.R. 188 (FC)

Erasmo v. Can. (A.G.) (2014), 468 F.T.R. 188 (FC)

MLB headnote and full text

Temp. Cite: [2014] F.T.R. TBEd. DE.043

Robbie Richard Erasmo (applicant) v. Canada (Attorney General)

(respondent)

(T-881-14; 2014 FC 1096)

Indexed As: Erasmo v. Canada (Attorney General)

Federal Court

Manson, J.

November 19, 2014.

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. 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.

Civil Rights - Topic 3107.2

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

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure not contrary to fundamental justice - [See first Criminal Law - Topic 5670.7 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See second 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 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 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See fourth 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 (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 - See paragraphs 17 to 30.

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 - 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 held, inter alia, that s. 9 of the Charter (no arbitrary imprisonment) was not infringed - Where Parliament had specifically sought to tailor the scheme merging the applicant's youth and adult sentences to situations such as his, the scheme was rationally tied to its purpose - See paragraphs 31 to 33.

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 section 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 - See paragraphs 34 to 37.

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 section 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 - See paragraphs 38 to 47.

Criminal Law - Topic 8803

Young offenders - Decisions (incl. punishments) - Applicable legislation - 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 -Section 140 of the YCJA provided that "Except to the extent that it is inconsistent with or excluded by this Act, the provisions of the Criminal Code apply, with any modifications that the circumstances require, in respect of offences alleged to have been committed by young persons." - The Federal Court held that while the importance of s. 140 of the YCJA should not be ignored in any case involving a young offender, it was unnecessary to engage its protections here - "The Criminal Code, as it is applies to the Applicant, is not inconsistent with the YCJA. The Applicant was sentenced under the YCJA and the integrity of that sentence is maintained under the merging scheme. While it is a different approach to non-incarceratory portions of a sentence, the CCRA provides for a conditional release and parole system that mitigate the effects of the youth and adult sentences merging as a single adult sentence." - See paragraphs 50 and 51.

Criminal Law - Topic 8803

Young offenders - Decisions (incl. punishments) - Applicable legislation - [See third Criminal Law - Topic 5670.7 ].

Cases Noticed:

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 12].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, appld. [para. 17].

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. 18].

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. 19].

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, refd to. [para. 22].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 22].

Cooper v. Canada (Attorney General) (2002), 295 N.R. 184; 2002 FCA 374, refd to. [para. 26].

Capra v. Canada (Attorney General) (2008), 335 F.T.R. 299; 2008 FC 1212, consd. [para. 26].

Cunningham v. Canada, [1993] 2 S.C.R. 143; 151 N.R. 161; 62 O.A.C. 243, refd to. [para. 26].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 31].

R. v. Rodgers - see R. v. Jackpine (R.).

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 35].

J.P. v. Canada (Attorney General) (2009), 344 F.T.R. 235; 2009 FC 402, dist. [para. 36].

Van Buskirk v. Canada (Solicitor General) (2012), 423 F.T.R. 100; 2012 FC 1463, refd to. [para. 36].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, appld. [para. 38].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 42].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 43].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 44].

R. v. T.B., 2005 ONCJ 104, refd to. [para. 48].

Statutes Noticed:

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 139(1) [para. 8].

Criminal Code, R.S.C. 1985, c. C-46, sect. 743.5(1) [para. 8 et seq., Appendix A].

Safe Streets and Communities Act, S.C. 2012, c. 1, sect. 75, sect. 196, sect. 197 [para. 11, Appendix A].

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 140 [para. 14 et seq., Appendix A].

Counsel:

Leonard J.W. Tailleur and Melissa Ferens, for the applicant;

Scott Farlinger and Alex Menticoglou, for the respondent.

Solicitors of Record:

Leonard J.W. Tailleur, Regency Community Law Centre, Winnipeg, Manitoba, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Winnipeg, Manitoba, for the respondent.

This application was heard at Winnipeg, Manitoba, on November 12, 2014, by Manson, J., of the Federal Court, who delivered the following decision at Ottawa, Ontario, on November 19, 2014.