Pearce v. Parole Board of Canada, (2012) 416 F.T.R. 21 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: April 05, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 416 F.T.R. 21 (FC);2012 FC 923

Pearce v. Parole Bd. (2012), 416 F.T.R. 21 (FC)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2012] F.T.R. TBEd. AU.015

Edward Pearce (applicant) v. The Parole Board of Canada (respondent)

(T-1223-11; 2012 FC 923; 2012 CF 923)

Indexed As: Pearce v. Parole Board of Canada

Federal Court

Mosley, J.

July 20, 2012.

Summary:

Pearce was serving a five-year sentence for drug offences. When he was sentenced, the Corrections and Conditional Release Act provided accelerated parole review for eligible offenders. Pearce was informed that Correctional Services was recommending him for accelerated parole. While his case was pending consideration by the Parole Board, the Abolition of Early Parole Act (AEPA) was brought into force. The Board denied him accelerated parole release. The Appeal Division dismissed the appeal, finding that the Board's decision was consistent with the transitional provisions of the AEPA. Pearce applied for judicial review, contending that he was denied procedural fairness and that he was entitled to consideration under the law as it was when his application for accelerated review was submitted.

The Federal Court granted the application and remitted the matter to the Board for reconsideration. The court found that Pearce had an accrued right or privilege under common law and s. 43 of the Interpretation Act to have his parole application reviewed by the Board under the repealed accelerated parole provisions. The court was unable to conclude that there was a breach of procedural fairness by the Board and the Appeal Division.

Administrative Law - Topic 2267

Natural justice - The duty of fairness - Reasonable expectation or legitimate expectation - [See fourth Criminal Law - Topic 5670.9 ].

Criminal Law - Topic 5666.1

Punishments (sentence) - Imprisonment and parole - Accelerated parole - [See all Criminal Law - Topic 5670.9 ].

Criminal Law - Topic 5670.9

Punishments (sentence) - Imprisonment and parole - Parole - Judicial review or appeal - On March 31, 2011, the Parole Board denied accelerated parole release to the applicant because of the entry into force of the Abolition of Early Parole Act (AEPA) on March 28, 2011 - The Appeal Division dismissed the appeal, finding that the Board's decision was consistent with the transitional provisions of the AEPA and the applicant could no longer benefit from accelerated parole consideration - The applicant sought judicial review - He contended that he was denied procedural fairness and that he was entitled to consideration under the law as it was when his application for accelerated review was submitted - The Federal Court held that the question of law in the matter was subject to the correctness standard of review - "The interplay between the CCRA [Corrections and Conditional Release Act], the transitional provisions of the AEPA, principles of common law and the Interpretation Act lies outside the tribunal's area of expertise. Furthermore, the questions of law raised by this application can only have one answer: whether the applicant's entitlement to accelerated review was protected or not. There is no range of possible reasonable outcomes." - The appropriate standard of review for questions of procedural fairness was correctness - See paragraphs 22 and 23.

Criminal Law - Topic 5670.9

Punishments (sentence) - Imprisonment and parole - Parole - Judicial review or appeal - The applicant was serving a sentence in a federal penitentiary - When he was sentenced, the Corrections and Conditional Release Act provided for accelerated parole review for eligible offenders - On March 31, 2011, the Parole Board denied accelerated parole release to the applicant because of the entry into force of the Abolition of Early Parole Act (AEPA) on March 28, 2011 - The Appeal Division dismissed the appeal, finding that the Board's decision was consistent with the transitional provisions of the AEPA - The Federal Court allowed the judicial review application and remitted the matter to the Board for reconsideration - The applicant met the criteria that served as guide to determine to existence of an accrued right or privilege: he was eligible for early parole under the repealed provisions, and was personally entitled to have his application considered by the Board; he had received a positive recommendation from Correctional Services of Canada (CSC); CSC had submitted his application before the date of the repeal; and a decision from the Board was the last step required - The court thus found that the applicant had an accrued right or privilege under common law and s. 43 of the Interpretation Act to have his parole application reviewed by the Board under the repealed accelerated parole provisions - In the end result, the court interpreted the transitional provisions as preserving the accrued right or privilege in order to avoid unfairness - See paragraphs 45 to 47.

Criminal Law - Topic 5670.9

Punishments (sentence) - Imprisonment and parole - Parole - Judicial review or appeal - Section 10 of the Abolition of Early Parole Act (AEPA) was a transitional provision which provided, subject to the limitation in s. 10 (2), that the accelerated parole review process no longer applied to offenders who were sentenced, committed or transferred to penitentiary before the coming into force of the repeal of ss. 125 to 126.1 of the Corrections and Conditional Release Act - On March 31, 2011, the Parole Board denied accelerated parole release to the applicant because of the entry into force of the Abolition AEPA on March 28, 2011 - Correctional Services of Canada (CSC) had submitted his application before the date of the repeal - On judicial review, an issue was whether the doctrine of vested rights applied, considering the transitional provisions - The Federal Court held that, following the reasoning in Dikranian (2005) (S.C.C.), and s. 43 of the Interpretation Act, "the AEPA must be interpreted, considering the absence of clear statutory language regarding accruing rights or privileges, as preserving the accrued right or privilege of [the applicant] in order to avoid unfairness." - That conclusion required that the applicant's case be reviewed under the repealed provisions - However, "[o]ffenders who were eligible for early parole before the entry into force of the AEPA but for whom CSC did not submit all the required documents to the Board could not avail themselves of the above mentioned privilege or right." - See paragraphs 48 to 51.

Criminal Law - Topic 5670.9

Punishments (sentence) - Imprisonment and parole - Parole - Judicial review or appeal - On March 25, 2011, Correctional Services of Canada (CSC) was requested by a Parole Board case review officer to submit all documentation concerning the applicant's case in order to permit the Board to proceed with the accelerate parole release review before the entry into force of the Abolition of Early Parole Act (AEPA) - On March 31, 2011, the Board denied accelerated parole release to the applicant because of the entry into force of the AEPA on March 28, 2011 - The Appeal Division dismissed the appeal - On judicial review, the applicant submitted that the Appeal Division and the Board breached their duty of procedural fairness; specifically, he alleged that he had a legitimate expectation to have his case reviewed by the Board on March 25, 2011 - The Federal Court was unable to conclude that there was a breach of procedural fairness by the Board and the Appeal Division - Although it appeared that the applicant was led to believe that a decision would be made on March 25, 2011, the Board made no representations directly to him - The language in the email sent to the CSC staff member was not sufficiently clear, unambiguous and unqualified to constitute an undertaking by the Board to the applicant that his case would be reviewed on March 25, 2011 - It conveyed information about the looming deadline but offered no assurance that the Board would deal with the matter on that date - See paragraphs 52 to 55.

Statutes - Topic 525.1

Interpretation - General principles - Transitional provisions - [See third Criminal Law - Topic 5670.9 ].

Statutes - Topic 6903

Operation and effect - Commencement, duration and repeal - Repeal - Preservation of rights acquired or accrued under repealed statute - [See fourth Criminal Law - Topic 5670.9 ].

Cases Noticed:

Scott v. Canada (Attorney General) (2010), 369 F.T.R. 162; 2010 FC 496, refd to. [para. 18].

Tozzi v. Canada (Attorney General), [2007] F.T.R. Uned. 994; 2007 FC 825, refd to. [para. 18].

Latham v. Canada (Solicitor General) et al. (2006), 288 F.T.R. 37; 2006 FC 284, refd to. [para. 18].

Bouchard v. National Parole Board et al., [2008] F.T.R. Uned. 734; 2008 FC 248, refd to. [para. 18].

J.P. v. Canada (Attorney General) (2009), 344 F.T.R. 235; 2009 FC 402, affd. (2010), 401 N.R. 73; 2010 FCA 90, refd to. [para. 19].

McMurray v. National Parole Board (2004), 249 F.T.R. 118; 2004 FC 462, refd to. [para. 19].

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. 20].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al. (2011), 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 20].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 23].

Friends of Point Pleasant Park et al. v. Canada (Attorney General) (2000), 198 F.T.R. 20 (T.D.), refd to. [para. 26].

Stumf et al. v. Canada (Minister of Citizenship and Immigration) (2002), 289 N.R. 165; 2002 FCA 148, refd to. [para. 28].

Kinsey v. Canada (Attorney General) et al. (2007), 313 F.T.R. 88; 2007 FC 543, refd to. [para. 29].

R. v. Mitchell, [1976] 2 S.C.R. 570; 6 N.R. 389, refd to. [para. 38].

Lopez v. National Parole Board et al. (2001), 162 B.C.A.C. 66; 264 W.A.C. 66; 2001 BCCA 742, refd to. [para. 38].

Berenstein v. Commission nationale des libérations conditionnelles (1996), 111 F.T.R. 231 (T.D.), refd to. [para. 38].

Apotex Inc. v. Canada (Attorney General) et al., [2000] 4 F.C. 264; 255 N.R. 319 (F.C.A.), refd to. [para. 38].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 40].

LeStrange v. Pettefar (1939), 161 L.T. 300, refd to. [para. 41].

Canadian Union of Postal Workers v. Canada Post Corp., [1994] 3 F.C. 140; 74 F.T.R. 124 (T.D.), refd to. [para. 41].

Hall v. Minister of Employment and Immigration, [1983] O.J. No. 376 (C.A.), refd to. [para. 41].

University Health Network et al. v. Ontario (Minister of Finance) (2001), 151 O.A.C. 286 (C.A.), refd to. [para. 42].

Dikranian v. Quebec (Attorney General), [2005] 3 S.C.R. 530; 342 N.R. 1; 2005 SCC 73, refd to. [para. 45].

Hutchins v. National Parole Board et al. (1993), 156 N.R. 205 (F.C.A.), refd to. [para. 46].

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. 52].

Mavi et al. v. Canada (Attorney General) et al. (2011), 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 53].

Statutes Noticed:

Abolition of Early Parole Act, S.C. 2011, c. 11, sect. 5, sect. 10 [para. 12].

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 119.1, sect. 125(2), sect. 125(4), sect. 126(1) [para. 13].

Corrections and Conditional Release Act Regulations (Can.), Corrections and Conditional Release Regulations, SOR/92-620, sect. 159 [para. 14].

Corrections and Conditional Release Regulations - see Corrections and Conditional Release Act Regulations (Can.).

Interpretation Act, R.S.C. 1985, c. I-21, sect. 43 [para. 15].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 711 to 712, 719 to 721 [para. 49].

Counsel:

Erin K. Breen, for the applicant;

Melissa Chan, for the respondent.

Solicitors of Record:

Simmonds + Partners Defence, St. John's, Newfoundland, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Halifax, Nova Scotia, for the respondent.

This application for judicial review was heard at St. John's, Newfoundland, on April 5, 2012, before Mosley, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated July 20, 2012, at Ottawa, Ontario.