J.P. v. Canada (Attorney General), 2009 FC 402

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: March 17, 2009
• Jurisdiction: Canada (Federal)
• Citations: 2009 FC 402;(2009), 344 F.T.R. 235 (FC)

J.P. v. Can. (A.G.) (2009), 344 F.T.R. 235 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. MY.004

J.P. (applicant) v. The Attorney General of Canada (respondent)

(T-20-09; 2009 FC 402)

Indexed As: J.P. v. Canada (Attorney General)

Federal Court

Mosley, J.

April 24, 2009.

Summary:

A youth's sentence included both custody (22 months) and conditional supervision (36 months). Since he was serving his sentence in an adult facility, the parole provisions of the Corrections and Conditional Release Act applied. The National Parole Board ruled that parole eligibility was to be calculated on the basis of the total sentence (58 months), not just the custodial portion of the sentence as argued by the youth. The youth sought judicial review.

The Federal Court allowed the application. Parole eligibility was to be determined solely on the basis of the custodial portion of the sentence.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - A youth was serving a youth sentence comprised of custody and conditional supervision - The youth claimed that his parole eligibility should be calculated solely on the custodial portion of the sentence - The National Parole Board, interpreting its home statute (Corrections and Conditional Release Act) and a related statute (Youth Criminal Justice Act), ruled that parole eligibility was to be calculated on both the custodial and conditional supervision portions of the sentence (i.e., later parole eligibility date) - The youth sought judicial review - At issue was the standard of review, particularly in light of the statement in Khosa (S.C.C.) that notwithstanding the general view that errors of law were governed by the correctness standard "if the interpretation of the home statute or a closely related statute by an expert decision maker is reasonable, there is no error of law justifying intervention" - The Federal Court held that although the Board was interpreting its "home statute" and a "related statute", the questions at issue arose outside of the context of the Board's usual administrative regime respecting the granting of parole to adult offenders - The court stated that "I have no reason to believe that the Board has any greater degree of expertise than the court in construing the interplay between the two statutes. The questions of law that arise may be considered to be of significant importance to the youth justice system and outside the Board's expertise. Accordingly, I am satisfied that the Board's decision does not require deference and that I must be concerned with whether the Board correctly interpreted the applicable legislation in its calculation of J.P.'s parole eligibility." - See paragraphs 9 to 15.

Criminal Law - Topic 5603

Punishments (sentence) - General principles - Sentence defined - [See Criminal Law - Topic 5668.1 ].

Criminal Law - Topic 5668.1

Punishments (sentence) - Imprisonment and parole - Parole - Eligibility - Youth under custody and supervision order - Section 120(1) of the Corrections and Conditional Release Act provided that an offender was not eligible for parole until he served the lesser of 1/3 of his "sentence" or seven years - The Act applied to a youth serving the custodial portion of his youth sentence in an adult facility - A youth was serving a youth sentence in an adult facility - The Act applied to him - His sentence was comprised of custody (22 months) and conditional supervision (36 months) - The youth claimed that his parole eligibility should be calculated solely on the custodial portion of the sentence (i.e. only the 22 months constituted the "sentence") - The National Parole Board ruled that "sentence" included both the custody and conditional supervision portions of a youth sentence (resulting in later eligibility for parole) - The Federal Court held that a literal reading of the Act and the Youth Criminal Justice Act resulted in a "sentence" including both the custody and conditional supervision portions of the "youth sentence" - However, using the modern approach to statutory interpretation in Rizzo (S.C.C.), the court held that "the term 'youth sentence' within the meaning of section 2 of the CCRA can mean nothing other than the custodial portion of the applicant's sentence" - The court noted that "since parole is a discretionary decision allowing offenders to serve the balance of their sentences of imprisonment outside an institution, it cannot attach to a sanction or portion thereof that is already ordered to be served in the community, such as the conditional supervision portion of a sentence" - The court held that the Board's jurisdiction over the youth to grant, terminate or revoke parole and to supervise the youth expired at the end of the 22 month custodial portion of the sentence, unless the youth remained in custody after the 22 months for the remainder of his sentence - In that case, the Board would retain jurisdiction until custody ended.

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Criminal Law - Topic 5668.1 ].

Statutes - Topic 507

Interpretation - General principles - Sensible and not literal interpretation - [See Criminal Law - Topic 5668.1 ].

Statutes - Topic 516

Interpretation - General principles - Ordinary meaning of words - [See Criminal Law - Topic 5668.1 ].

Cases Noticed:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 6].

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

MacDonald v. Canada (Attorney General) (2008), 330 F.T.R. 261; 2008 FC 796, refd to. [para. 9].

Dixon v. Canada (Attorney General) (2008), 331 F.T.R. 214; 2008 FC 889, refd to. [para. 10].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 11].

R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 18].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 19].

R. v. C.W.W. (2005), 388 A.R. 170; 71 W.C.B.(2d) 636 (Prov. Ct.), refd to. [para. 23].

R. v. S.J.L., [2005] B.C.T.C. 177; 64 W.C.B.(2d) 175 (S.C.), refd to. [para. 23].

R. v. D.L.C. (2003), 57 W.C.B.(2d) 341, refd to. [para. 23].

Sychuk v. Canada (Attorney General) (2009), 340 F.T.R. 160; 2009 FC 105, refd to. [para. 31].

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. 43].

Hrushka v. Canada (Minister of Foreign Affairs) et al. (2009), 340 F.T.R. 81; 2009 FC 69, refd to. [para. 45].

Ewing v. Mission Institution (Warden) (1994), 92 C.C.C.(3d) 484 (B.C.C.A.), refd to. [para. 51].

R. v. C.K. (2008), 233 C.C.C.(3d) 194; 2008 ONCJ 236, refd to. [para. 58].

Statutes Noticed:

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 2 [para. 35]; sect. 119(1)(c), sect. 120(1) [para. 32].

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 42(2)(q)(ii) [para. 37].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (1st Ed. 1974), p. 67 [para. 39].

Counsel:

Garth Barriere and Christopher Hardcastle, for the applicant;

Liliane Bantourakis and Curtis Working, for the respondent.

Solicitors of Record:

Garth Barriere and Christopher Hardcastle, Vancouver, British Columbia, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application was heard on March 17, 2009, at Ottawa, Ontario, by way of video-conference, before Mosley, J., of the Federal Court, who delivered the following judgment on April 24, 2009.