Joly v. Canada (Attorney General), (2014) 471 F.T.R. 190 (FC)

• Judge: Diner, J.
• Court: Federal Court (Canada)
• Case Date: August 26, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 471 F.T.R. 190 (FC);2014 FC 1253

Joly v. Can. (A.G.) (2014), 471 F.T.R. 190 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JA.036

Donald Joly (applicant) v. Attorney General of Canada (respondent)

(T-370-14; 2014 FC 1253)

Indexed As: Joly v. Canada (Attorney General)

Federal Court

Diner, J.

December 23, 2014.

Summary:

Joly received statutory release while serving a 23 year sentence for robbery and armed robbery. His statutory release was suspended in November 2012, and a parole officer recommended a revocation of his parole. The Parole Board of Canada (PBC) revoked Joly's parole in February 2013 without providing him with an oral hearing. The Appeal Division of the PBC affirmed the decision. Joly applied for judicial review.

The Federal Court allowed the application and remitted the matter to the PBC for reconsideration. The PBC was required to provide Joly with an oral hearing.

Administrative Law - Topic 262

The hearing and decision - Right to a hearing - When right exists - In November 2012, Joly's parole was suspended and a parole officer recommended that his parole be revoked - Prior to December 2012, s. 140 of the Corrections and Conditional Release Act provided that parolees had the right to an oral hearing before the Parole Board of Canada (PBC) before a decision was made to revoke parole - Section 140 was amended in December 2012 to provide that the PBC had sole discretion in deciding whether to hold an oral hearing - In February 2013, the PBC revoked Joly's parole without providing him with an oral hearing - The Appeal Division of the PBC affirmed the decision - The Federal Court allowed Joly's application for judicial review - Section 528 of the Amending Act stated that the new s. 140 only applied to "a review" of an offender's case that began on or after the day on which the section came into force - "A review" was not limited to a proceeding before the PBC - It also included the review by the parole officer, which in Joly's case began before the amendment came into force - This interpretation was in accordance with the presumption of consistent expression and also protected Joly from a retrospective effect of the new law - As such, Joly was legally entitled to an oral hearing - See paragraphs 41 to 67.

Administrative Law - Topic 262

The hearing and decision - Right to a hearing - When right exists - Joly was on parole - The terms of his statutory release required that he abstain from alcohol - In November 2012, police arrested Joly after observing the smell of alcohol on his breath and bloodshot eyes, and finding a knife in his possession which was alleged to be a prohibited weapon - Joly's parole was suspended and a parole officer recommended that his parole be revoked - In December 2012, the prohibited weapons charges were withdrawn - In February 2013, the Parole Board of Canada (PBC) revoked Joly's parole without providing him with an oral hearing - The Appeal Division of the PBC affirmed the decision - The Federal Court allowed Joly's application for judicial review - A central factor in the PBC's decision was the incident concerning the knife, even though the charges were withdrawn - Where credibility was at issue, and a negative determination carried the consequence of a significant period of re-incarceration, procedural fairness required that Joly be given the opportunity to relay his side of the story - Joly had a justifiable expectation that he would be given an oral hearing, as he had in the past, and this explained why he declined to make written representations to the PBC - See paragraphs 68 to 103.

Administrative Law - Topic 265

The hearing and decision - Right to a hearing - Persons entitled to a hearing - [See both Administrative Law - Topic 262 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See second Administrative Law - Topic 262 ].

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See second Administrative Law - Topic 262 ].

Criminal Law - Topic 5667

Punishments (sentence) - Imprisonment and parole - Parole - Forfeiture, revocation or termination of - [See both Administrative Law - Topic 262 ].

Statutes - Topic 2265

Interpretation - Presumptions and rules in aid - Against change in terminological usage - Consistent expression - [See first Administrative Law - Topic 262 ].

Statutes - Topic 2272

Interpretation - Presumptions and rules in aid - Presumption against retrospective or retroactive operation - [See first Administrative Law - Topic 262 ].

Cases Noticed:

Collins v. Canada (Attorney General) (2014), 454 F.T.R. 106; 2014 FC 439, refd to. [para. 13].

Khela v. Mission Institution (Warden) et al. (2014), 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 20].

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. 21].

Sychuk v. Canada (Attorney General) (2009), 340 F.T.R. 160; 2009 FC 105, refd to. [para. 22].

Desjardins v. National Parole Board et al. (1989), 29 F.T.R. 38 (T.D.), refd to. [para. 22].

Aney v. Canada (Attorney General) (2005), 270 F.T.R. 262; 2005 FC 182, refd to. [para. 22].

Fournier v. Canada (Attorney General) (2004), 258 F.T.R. 295; 2004 FC 1124, refd to. [para. 23].

Cartier v. Canada (Procureur général) (2002), 300 N.R. 362; 2002 FCA 384, refd to. [para. 24].

Canadian National Railway Co. v. Canada (Attorney General) et al. (2014), 458 N.R. 150; 2014 SCC 40, refd to. [para. 49].

British Columbia v. Imperial Tobacco Canada Ltd. et al. (2005), 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1; 2005 SCC 49, refd to. [para. 65].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 69].

Suresh v. Canada (Minister of Citizenship and Immigration, [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 71].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 71].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 73].

Way v. Commission des libérations conditionnelles du Canada, 2014 QCCS 4193, appld. [para. 81].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 84].

R. v. Conroy, [1983] O.J. No. 3089 (H.C.J.), refd to. [para. 85].

R. v. Cadeddu; R. v. Nunery (1982), 146 D.L.R.(3d) 629, refd to. [para. 88].

Illes v. Kent Institution (Warden), [2001] B.C.T.C. 1465; 160 C.C.C.(3d) 307; 2001 BCSC 1465, refd to. [para. 90].

Jones v. Mission Institution (Warden) et al., [2002] B.C.T.C. 12; 2002 BCSC 12, refd to. [para. 90].

Hewitt v. Canada (National Parole Board), [1984] 2 F.C. 357, refd to. [para. 92].

Whaling v. Canada (Attorney General) (2014), 455 N.R. 1; 351 B.C.A.C. 43; 599 W.A.C. 43; 2014 SCC 20, refd to. [para. 94].

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. 99].

Korn v. Canada (Attorney General) (2014), 456 F.T.R. 307; 2014 FC 590, refd to. [para. 102].

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. 103].

Statutes Noticed:

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 140(1) [para. 44].

Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19, sect. 528 [para. 47].

Counsel:

John Dillon, for the applicant;

Peter Nostbakken, for the respondent.

Solicitors of Record:

John Dillon, Kingston, Ontario, for the applicant;

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

This application for judicial review was heard at Ottawa, Ontario, on August 26, 2014, before Diner, J., of the Federal Court, who delivered the following judgment and reasons at Toronto, Ontario, on December 23, 2014.