Van Buskirk v. Canada (Solicitor General), (2012) 423 F.T.R. 100 (FC)

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: November 27, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 423 F.T.R. 100 (FC);2012 FC 1463

Van Buskirk v. Can. (2012), 423 F.T.R. 100 (FC)

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[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. DE.039

Brent William Van Buskirk (applicant) v. Canada (Solicitor General) (respondent)

(T-671-12; 2012 FC 1463; 2012 CF 1463)

Indexed As: Van Buskirk v. Canada (Solicitor General)

Federal Court

Shore, J.

December 11, 2012.

Summary:

Van Buskirk was convicted and sentenced as a youth under the Youth Criminal Justice Act for first degree murder, and was subsequently convicted and sentenced consecutively as an adult under the Criminal Code (conspiracy and contempt of court sentences). The Chief of Sentence Management included the community supervision portion of Van Buskirk's youth sentence in calculating his parole eligibility dates under the Corrections and Conditional Release Act. Van Buskirk applied for judicial review.

The Federal Court denied the application on the basis of s. 743.5(3)(a) of the Criminal Code.

Criminal Law - Topic 5670.7

Punishments (sentence) - Imprisonment and parole - Statutory release date - [See second Criminal Law - Topic 5670.9 ].

Criminal Law - Topic 5670.9

Punishments (sentence) - Imprisonment and parole - Parole - Judicial review or appeal - The applicant was convicted and sentenced as a youth under the Youth Criminal Justice Act (YCJA) for first degree murder, and was subsequently convicted and sentenced consecutively as an adult under the Criminal Code - The applicant sought judicial review of the calculation of his parole eligibility dates by the Chief of Sentence Management (CSM) - The critical question was whether the applicant's non-custodial YCJA sentence could be included in calculating his parole eligibility dates under the Corrections and Conditional Release Act (CCRA) - The Federal Court followed the court's determination in J.P. v. Canada (Attorney General) (2010) that the interpretation of the parole eligibility provisions attracted the standard of correctness - "The correctness standard is even more appropriate because the dispositive question in the application for judicial review is the temporal application of recent amendments to the CCRA. A question as to the temporal application of a law is a question of law that is 'of central importance to the legal system ... and outside the ... specialized area of expertise' of the CSM. ... [S]uch a question of law attracts the standard of correctness." - See paragraphs 46 to 48.

Criminal Law - Topic 5670.9

Punishments (sentence) - Imprisonment and parole - Parole - Judicial review or appeal - The applicant was convicted and sentenced as a youth under the Youth Criminal Justice Act (YCJA) for first degree murder, and was subsequently convicted and sentenced consecutively as an adult under the Criminal Code (conspiracy and contempt of court sentences) - The Chief of Sentence Management determined that the sentences had been merged under s. 139 of the Corrections and Conditional Release Act (CCRA), and included the applicant's 48-month non-custodial YCJA sentence in calculating his statutory release date under s. 127 of the CCRA - The Federal Court denied the judicial review application - The applicant was subject to the conversion provisions in s. 743.5 of the Code because he was sentenced to a term of imprisonment for an offence while subject to a youth sentence imposed under s. 42(2)(q) of the YCJA - Section 743.5(3)(a) deemed the applicant's non-custodial YCJA sentence and subsequent terms of imprisonment to constitute one sentence of imprisonment for the purposes of s. 139 of the CCRA - See paragraphs 49 to 57.

Cases Noticed:

J.P. v. Canada (Attorney General), [2010] 3 F.C.R. 3; 344 F.T.R. 235; 2009 FC 402, affd. [2011] 4 F.C.R. 29; 401 N.R. 73; 2010 FCA 90, dist. [para. 24].

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. 28].

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. 28].

R. v. C.K. (2008), 2008 ONCJ 236, refd to. [para. 28].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 44].

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. 47].

R. v. A.C., [2008] O.N.C.J. No. 613, refd to. [para. 57].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 60].

Quebec (Attorney General) v. Expropriation Tribunal, [1986] 1 S.C.R. 732; 66 N.R. 380, refd to. [para. 62].

Statutes Noticed:

Corrections and Conditional Release Act, S.C. 1992, c. 20, sect. 99(2), sect. 119(1), sect. 119.2, sect. 120(1), sect. 120.1, sect. 120.2(1), sect. 127(1), sect. 127(3), sect. 139(1) [Annex A].

Criminal Code, R.S.C. 1985, c. C-46, sect. 743.5 [Annex A].

Youth Criminal Justice Act, S.C. 2002, c. 1, sect. 42(2)(q) [Annex A].

Authors and Works Noticed:

Baudouin, Louis, Les aspects generaux du droit public dans la province de Quebec (1965), p. 197 [para. 62].

Côté, Pierre-Andre, The Interpretation of Legislation in Canada (1982), p. 132 [para. 62].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 669 [para. 59].

Counsel:

Patrick M. Fullerton, for the applicant;

Mark E.W. East, for the respondent.

Solicitors of Record:

Smart, Harris & Martland, Vancouver, British Columbia, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application for judicial review was heard at Vancouver, British Columbia, on November 27, 2012, before Shore, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated December 11, 2012, at Ottawa, Ontario.