P.H. v. Canada (Attorney General)

P.H. v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2020-03-19
Neutral citation
2020 FC 393
File numbers
T-1378-18
Notes
A correction was made on December 4, 2020.
Reported Decision
Decision Content
Date: 20200319
Docket: T-1378-18
Citation: 2020 FC 393
Ottawa, Ontario, March 19, 2020
PRESENT: The Honourable Madam Justice Roussel
BETWEEN:
P.H.
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
I. Overview
[1] The Criminal Records Act, RSC 1985, c C-47 [CRA] provides for and governs the suspension of records of persons who have been convicted of offences and have subsequently rehabilitated themselves.
[2] In 2010 and 2012, Parliament enacted the Limiting Pardons for Serious Crimes Act, SC 2010, c 5 [LPSCA] and the Safe Streets and Communities Act, SC 2012, c 1 [SSCA], which amended certain provisions of the CRA. One of the amendments increased the waiting period before offenders can apply for a record suspension. Another changed the criteria the Parole Board of Canada applies to assess whether to grant a record suspension.
[3] Pursuant to section 10 of the LPSCA and section 161 of the SSCA [collectively, the “Transitional Provisions”], the amendments apply to all new applications for record suspensions regardless of when the offence was committed or when the offender was sentenced.
[4] The Applicant, P.H., was convicted in December 2010 of one count of sexual assault, contrary to section 271.1 of the Criminal Code, RSC 1985, c C-46. The offence in question was committed in June 2009. This is the Applicant’s only conviction. Prior to the adoption of the Transitional Provisions, P.H. would have been eligible to apply for a record suspension in January 2018. Now, he remains ineligible to apply until January 2023.
[5] In April 2017, Madam Justice MacNaughton of the Supreme Court of British Columbia [SCBC] declared the Transitional Provisions to be of no force and effect in Chu v Canada (Attorney General), 2017 BCSC 630 [Chu]. She found that they infringe sections 11(h) and 11(i) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. The Respondent, the Attorney General of Canada [AGC], did not appeal the decision.
[6] A few months later, in Charron v the Queen, OSCJ File No. 16-67821 [Charron] and Rajab v The Queen, OSCJ File No. 16-67822 [Rajab], Madam Justice Bell of the Ontario Superior Court of Justice [OSCJ] affirmed the findings of the SCBC in Chu and declared the Transitional Provisions to be of no force and effect. The AGC consented to the applications.
[7] Since the British Columbia and Ontario decisions, the Parole Board of Canada has been applying the old CRA provisions to individuals residing in British Columbia and Ontario. In all other provinces and territories, the Parole Board of Canada applies the new CRA provisions, as amended.
[8] P.H. is a resident of Quebec. He seeks an order from this Court declaring the Transitional Provisions constitutionally invalid on the basis that they infringe sections 11(h) and 11(i) of the Charter in a manner that cannot be saved under section 1 of the Charter. He also seeks an order directing the Parole Board of Canada to consider his application for a record suspension based on the CRA as it read at the time he committed the offence in June 2009. P.H. does not challenge the constitutional validity of the amendments themselves. Rather, he challenges the constitutional validity of the Transitional Provisions that give the amendments their retrospective application.
[9] The AGC consents to P.H.’s application.
[10] For the reasons that follow, I have concluded that the Transitional Provisions infringe sections 11(h) and 11(i) of the Charter in a manner that cannot be saved under section 1 of the Charter. Consequently, section 10 of the LPSCA and section 161 of the SSCA are declared to be constitutionally invalid and of no force or effect pursuant to subsection 52(1) of the Constitution Act, 1982.
II. History of the Proceedings in This Court
[11] On July 19, 2018, P.H. and a co-applicant filed a notice of application pursuant to subsection 18(1) of the Federal Courts Act, RSC 1985, c F-7 [the Act], seeking a declaration that they were eligible to apply for a record suspension under subparagraph 4(a)(i) of the CRA as it read at the time they committed their offence. They also requested an order requiring the Parole Board of Canada to accept record suspension applications under the rules in force before the adoption of the Transitional Provisions. The same day, P.H. requested an order to keep his name and other personally identifiable information confidential. After hearing from the parties, Prothonotary Alexandra Steele granted the confidentiality order on August 2, 2018.
[12] In August 2018, P.H. and his co-applicant filed an amended notice of application to include additional relief. They requested that the Court declare the Transitional Provisions unconstitutional. While the original and the amended notice of application also included relief against section 162 of the SSCA, which applied to pending applications for record suspensions, the parties have since abandoned this aspect of their application.
[13] In December 2018, the co-applicant withdrew from the application.
[14] On January 23, 2019, P.H. and the AGC filed a joint motion record under section 359 of the Federal Courts Rules, SOR/98-106 [Rules], seeking: (1) an order declaring that the Transitional Provisions infringe sections 11(h) and 11(i) of the Charter in a manner that cannot be saved under section 1 of the Charter and are therefore of no force or effect; and (2) an order directing the Parole Board of Canada to consider P.H.’s record suspension application pursuant to the CRA as it read at the time he committed the offence in June 2009. The motion was returnable on January 29, 2019 at the General Sittings of this Court in Montréal, Quebec.
[15] After reviewing the joint motion record and noting the AGC’s consent, I issued a direction advising the parties that I would not hear the motion on its merits as scheduled, but that counsel should appear nevertheless to discuss process and scheduling. When counsel appeared before me on January 29, 2019, I raised a number of concerns regarding their joint motion.
[16] My first concern regarded the process followed. It was not clear to me why the parties were proceeding by way of a notice of motion given that sections 18 and 18.1 of the Act and Part 5 of the Rules govern the underlying application. P.H. had not perfected his application record under section 309 of the Rules, and there appeared to be minimal evidence on the record to support the constitutional challenge. I queried whether the record was complete and, if so, whether the parties had brought this motion at the Court’s General Sittings in an attempt to obtain an expedited hearing on the underlying application.
[17] My second concern related to the AGC’s consent to the declaration of invalidity and the absence of an adversarial process. I reminded counsel that legislation is presumptively valid and that it is generally the AGC’s role to argue why federal law should be upheld. I asked the AGC whether it was not Parliament’s responsibility to amend the Transitional Provisions in response to the AGC’s view that (a) it could no longer defend the constitutional validity of the Transitional Provisions and (b) that it was in the public interest to ensure a consistent application of the record suspension eligibility provisions across Canada.
[18] My third concern related to the principles of judicial comity. In their joint written submissions, the parties essentially ask this Court to rely on the decision of the SCBC in Chu to grant the relief sought. I informed them of my reluctance to do so in the absence of a similarly extensive evidentiary record and without the benefit of any adversarial context. I also questioned whether, by virtue of the principles of judicial comity, this Court was bound by the findings of the SCBC, a court of coordinate jurisdiction.
[19] Finally, since the parties instituted these proceedings to achieve a consistent application of the amendments across Canada, I asked them to address whether this Court has the jurisdiction to grant general declarations of constitutional invalidity. I did so in light of the comments of the Supreme Court of Canada in Windsor (City) v Canadian Transit Co, 2016 SCC 54 [Windsor], discussed below.
[20] At the hearing, the parties offered their views on these concerns. They argued that the AGC does not control Parliament’s legislative agenda and that the AGC cannot defend legislation once a Court declares it unconstitutional in a decision that the AGC does not challenge on appeal. Moreover, they were of the view that all of the evidence required to adjudicate the issues was before the Court and that this Court had jurisdiction to grant the requested declaration.
[21] Following the hearing, the AGC sent a letter to the Court on February 6, 2019 indicating that its decision to consent to a declaration of invalidity was exceptional and not taken lightly. The AGC has the overarching responsibility of promoting respect for the law and representing the public interest, including in the conduct of litigation. However, the AGC also has the obligation to ensure, in the public interest, the consistent application of federal law across Canada. The AGC contends that the issues before this Court were the subject of a final decision in Chu, where the AGC defended the constitutionality of the Transitional Provisions. After a detailed analysis, the SCBC found that the impugned provisions infringe both sections 11(h) and 11(i) of the Charter in a manner not justified by section 1 of the Charter. Following this decision, the AGC reassessed its position and decided not to appeal. When the same issue arose before the OSCJ, the AGC determined that it could not meaningfully distinguish the constitutional analysis in the Charron and Rajab cases from the SCBC’s decision in Chu. Guided by the principle that federal laws should apply consistently across the country, the AGC consented to the applications in Charron and Rajab.
[22] In the same letter, the AGC adds that while the decision not to defend a law is unusual, it is not unprecedented. For example, the AGC refers the Court to the same-sex marriage litigation in the early 2000s, where the AGC initially defended the federal legislation but ultimately decided that it was no longer in the public interest to continue. The Courts of Appeal for British Columbia and Ontario and the Superior Court of Quebec all found that the opposite-sex marriage requirement was contrary to section 15 of the Charter and could not be saved under section 1 of the Charter. The AGC decided not to appeal the judgments of the Courts of Appeal and discontinued its appeal of the Superior Court of Quebec judgment. This resulted in different constitutional rights for same-sex partners from one province to another. To remedy this inconsistent application, proceedings for declaratory relief to permit same-sex marriages were instituted in other provinces and territories. Courts in those jurisdictions adopted the reasoning and conclusions of the British Columbia and Ontario Courts of Appeal and issued declarations of invalidity.
[23] The AGC submits that, as with the same-sex marriage litigation, the current state of the law on record suspensions suffers from an uneven application of Charter rights for offenders seeking a record suspension. A ruling by this Court invalidating the impugned provisions would allow for a declaration of unconstitutionality with national effect and would ensure a consistent application of record suspensions across Canada. By supporting the relief sought by P.H., the AGC is discharging its duty to act in the public interest, maintaining a coherent litigation approach and demonstrating its commitment to respect constitutional and Charter rights.
[24] Regarding the issue of this Court’s jurisdiction, the AGC argues that the Federal Court does indeed have the authority to grant declarations of invalidity where there is a direct challenge to federal legislation.
[25] Finally, the AGC writes that this Court has the inherent power to appoint amicus curiae in order to provide an adversarial debate to ensure an informed decision rendered in light of all relevant arguments and evidence. However, the AGC does not consider it necessary in this case because the constitutionality of the Transitional Provisions has already been litigated in an adversarial context in Chu. A notice of constitutional question was served on all of the provincial attorneys general, and none chose to intervene.
[26] After examining the material submitted by the AGC and considering the same-sex marriage decisions, I held a telephone conference with the parties on February 20, 2019 during which I highlighted the distinction between the case before me and the same-sex marriage cases. I noted that, in those cases, three (3) superior courts and two (2) appeal courts had examined the same constitutional issues. The Supreme Court of Canada also considered similar issues in Reference re Same-Sex Marriage, 2004 SCC 79. Relying on the decision of the Federal Court of Appeal in Advantage Products Inc v Excalibre Oil Tools Ltd, 2019 FCA 22, I reminded the parties of this Court’s obligation to act judicially and not as a “rubber stamp”. In other words, I informed them that I had to be satisfied on the facts and the law that I should make the requested declaration. Noting that this Court lacks the evidence available in Chu, I asked the parties to provide additional submissions on the following subjects:
a) The Court’s jurisdiction to grant the requested relief;
b) Whether the Court had enough evidence to issue a general declaration of invalidity, and whether it could rely on the evidence presented in Chu, particularly regarding the expert evidence;
c) Updated representations on the applicable law since Chu; and
d) Whether this Court should make a distinction between the Chu case and this case, given the nature of the crimes for which Mr. Chu and P.H. were convicted.
[27] The parties agreed to file written representations by March 20, 2019. After considering all of their submissions, I agreed to hear the matter on April 1, 2019.
III. Relevant Provisions
[28] When P.H. committed his offence in 2009, section 4 of the CRA read as follows:
4 Before an application for a pardon may be considered, the following period must have elapsed after the expiration according to law of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine, imposed for an offence, namely,
4 La période consécutive à l’expiration légale de la peine, notamment une peine d’emprisonnement, une période de probation ou le paiement d’une amende, pendant laquelle la demande de réhabilitation ne peut être examinée est de :
(a) five years, in the case of
a) cinq ans pour les infractions punissables par voie de mise en accusation […]
(i) an offence prosecuted by indictment, …
[en blanc]
[My emphasis.]
[29] On June 29, 2010, the LPSCA amended section 4 of the CRA. The amendment extended the ineligibility period from five (5) to ten (10) years for a series of offences, namely: serious personal injury offences within the meaning of section 752 of the Criminal Code, including manslaughter, for which the applicant was sentenced to imprisonment for two (2) years or more; or an offence referred to in Schedule 1 that was prosecuted by indictment (Schedule 1 offences generally relate to sexual offences involving young victims).
[30] The LPSCA also imposed additional substantive criteria for the Parole Board of Canada to consider in assessing whether to grant a record suspension for offences prosecuted by indictment. In addition to being satisfied that “the applicant, during the applicable period referred to in section 4, has been of good conduct and has not been convicted of an offence under an Act of Parliament”, the Parole Board of Canada had to be satisfied that:
4.1 (1) …
4.1 (1) […]
(b) in the case of an offence referred to in paragraph 4(a), granting the pardon at that time would provide a measurable benefit to the applicant, would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.
b) dans le cas d’une infraction visée à l’alinéa 4a), que le fait d’octroyer à ce moment la réhabilitation apporterait au demandeur un bénéfice mesurable, soutiendrait sa réadaptation en tant que citoyen respectueux des lois au sein de de la société et ne serait pas susceptible de déconsidérer l’administration de la justice.
[My emphasis.]
[31] In addition to these amendments, section 10 of the LPSCA provided for the retrospective application of the amendments:
10. Subject to section 11, an application for a pardon under the Criminal Records Act in respect of an offence that is referred to in paragraph 4(a) of that Act, as it read immediately before the day on which this Act comes into force, and that is committed before that day shall be dealt with and disposed of in accordance with the Criminal Records Act, as amended by this Act.
10. Sous réserve de l’article 11, la demande de réhabilitation présentée en vertu de la Loi sur le casier judiciaire à l’égard d’une infraction visée à l’alinéa 4a) de cette loi, dans sa version antérieure à la date d’entrée en vigueur de la présente loi, et perpétrée avant cette date est traitée en conformité avec la Loi sur le casier judiciaire, dans sa version modifiée par la présente loi.
[32] On March 13, 2012, the SSCA amended section 4 of the CRA to read as follows:
4 (1) A person is ineligible to apply for a record suspension until the following period has elapsed after the expiration according to law of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine, imposed for an offence:
4 (1) Nul n’est admissible à présenter une demande de suspension du casier avant que la période consécutive à l’expiration légale de la peine, notamment une peine d’emprisonnement, une période de probation ou le paiement d’une amende, énoncée ci-après ne soit écoulée :
(a) 10 years, in the case of an offence that is prosecuted by indictment …
a) dix ans pour l’infraction qui a fait l’objet d’une poursuite par voie de mise en accusation […];
[My emphasis.]
[33] In addition to changing the term pardon to “record suspension” and extending the application of the ten (10) year ineligibility period to all offences prosecuted by indictment, the SSCA also provided for the retrospective application of the section 4 amendment, as follows:
161. Subject to section 162, an application for a pardon under the Criminal Records Act in respect of an offence that is referred to in paragraph 4(a) or (b) of that Act, as it read immediately before the day on which this section comes into force, and that is committed before that day shall be dealt with and disposed of in accordance with the Criminal Records Act, as amended by this Part, as though it were an application for a record suspension.
161. Sous réserve de l’article 162, la demande de réhabilitation présentée en vertu de la Loi sur le casier judiciaire à l’égard d’une infraction visée à l’alinéa 4a) ou b) de cette loi, dans sa version antérieure à la date d’entrée en vigueur du présent article, et perpétrée avant cette date est traitée en conformité avec la Loi sur le casier judiciaire, dans sa version modifiée par la présente partie, comme s’il s’agissait d’une demande de suspension du casier.
[34] Finally, sections 11(h) and 11(i) of the Charter provide :
11. Any person charged with an offence has the right
11. Tout inculpé a le droit :
…
[…]
(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and
h) d’une part de ne pas être jugé de nouveau pour une infraction dont il a été définitivement acquitté, d’autre part de ne pas être jugé ni puni de nouveau pour une infraction dont il a été définitivement déclaré coupable et puni;
(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
i) de bénéficier de la peine la moins sévère, lorsque la peine qui sanctionne l’infraction dont il est déclaré coupable est modifiée entre le moment de la perpétration de l’infraction et celui de la sentence.
IV. Analysis
A. Jurisdiction to Grant the Declaratory Relief Sought
[35] In ITO-International Terminal Operators Ltd v Miida Electronics Inc, [1986] 1 SCR 752 [ITO], the Supreme Court of Canada set out a three-part test to support a finding that the Federal Court has jurisdiction to deal with a given claim:
There must be a statutory grant of jurisdiction by Parliament.
There must be an existing body of federal law, essential to the disposition of the case, which nourishes the statutory grant of jurisdiction.
The law on which the case is based must be “a law of Canada” as the phrase is used in section 101 of the Constitution Act, 1867.
[36] More recently, the Supreme Court of Canada reiterated the ITO three-part test in Windsor. It also pointed out that in order to decide whether the Federal Court has jurisdiction over a claim, it is necessary to determine the essential nature or character of the claim. It further added that the essential nature of the claim must be determined based on “a realistic appreciation of the practical result sought by the claimant” (Windsor at paras 25-26, citing Canada v Domtar Inc, 2009 FCA 218 at para 28).
[37] Here, the pith and substance of these proceedings concern the legality of the authority granted to the Parole Board of Canada to retrospectively apply the statutory ten-year ineligibility period and the criteria for granting a record suspension. The purpose of the application is to require the Parole Board of Canada to consider P.H.’s application for a record suspension under the CRA provisions as they read at the time he committed the offence in June 2009. P.H.’s injunctive remedy is predicated on a finding that the Transitional Provisions are constitutionally invalid on the basis that they infringe sections 11(h) and 11(i) of the Charter.
[38] Turning to the first prong of the tripartite ITO test, I agree with the parties that there is a statutory grant of jurisdiction by Parliament. Sections 18 and 18.1 of the Act grant this Court exclusive jurisdiction (subject to section 28 of the Act) to issue an injunction and grant declaratory relief against any federal board, which includes the Parole Board of Canada. There is also an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction. The CRA, the LPSCA and the SSCA are federal laws essential to the disposition of this case, since a declaration that the Transitional Provisions are constitutionally invalid is the only remedy available to put an end to the inconsistent retrospective application of eligibility conditions for criminal record suspensions across Canada. Finally, the relevant statutes in this case are undoubtedly laws of Canada as per section 101 of the Constitution Act, 1867. They are federal statutes dealing with matters falling within the federal government’s exclusive jurisdiction over criminal law.
[39] Based on the above, I am satisfied that the ITO three-part test is met.
[40] I am also of the view that this Court has the jurisdiction to issue general declarations of invalidity for the purpose of section 52 of the Constitution Act, 1982. In reaching this conclusion, I have considered the comments made by the Supreme Court of Canada in Windsor, which appear to question the Federal Court’s plenary power to issue formal general declarations of invalidity, as the parties seek in this case.
[41] Writing for the majority in Windsor, Madam Justice Karakatsanis indicated that it was not necessary to consider the Federal Court of Appeal’s finding that this Court has the remedial power to declare legislation constitutionally invalid, inapplicable or inoperative. While declining to comment on the issue, she nevertheless noted “the important distinction between the power to make a constitutional finding which binds only the parties to the proceeding and the power to make a formal constitutional declaration which applies generally and which effectively removes a law from the statute books”. She accepted that this Court has the power to make findings of constitutionality and to give no force or effect in a particular proceeding to a law found to be unconstitutional. However, she added that her “silence on this point should not be taken as tacit approval of the Federal Court of Appeal’s analysis or conclusion” that this Court does indeed have the power to grant a general declaration of statutory invalidity under section 52 of the Constitution Act, 1982 (Windsor at paras 70-71).
[42] With the greatest of respect to the Supreme Court of Canada, I do not consider myself bound by these obiter comments. The facts in this case differ from those in Windsor. That case dealt with the application of a municipal bylaw to a federal undertaking. The applicant was not seeking relief under an Act of Parliament and under a federal right, but was seeking relief under the Constitution Act, 1867. In this case, sections 18 and 18.1 of the Act grant this Court the jurisdiction to issue declaratory relief against the Parole Board of Canada. There is no need to interpret this Court’s jurisdiction restrictively because this Court is a statutory court rather than a court of inherent jurisdiction. Although it is not a “superior court” within the meaning of section 96 of the Constitution Act, 1867, this Court is nevertheless comparable to a superior court when it exercises its general supervisory jurisdiction over federal boards, such as the Parole Board of Canada. Sections 18 and 18.1 of the Act do not remove the jurisdiction of provincial superior courts to grant a constitutional declaration against a federal board. However, the Act does create concurrent jurisdiction in cases where the Federal Court has been granted jurisdiction by an Act of Parliament (ss 18 and 18.1 of the Act) and the ITO test is otherwise met, as is the case here.
[43] I do not intend to comment any further on the majority’s obiter comments in Windsor. I accept and adopt as my own the reasoning of my colleagues who recently found that this Court does indeed have the jurisdiction to issue general declarations of invalidity for the purpose of section 52 of the Constitution Act, 1982 (Deegan v Canada (Attorney General), 2019 FC 960 at paras 212-240; Fédération des francophones de la Colombie-Britannique v Canada (Employment and Social Development), 2018 FC 530 at paras 55-65; Bilodeau-Massé v Canada (Attorney General), 2017 FC 604 at paras 38-88). I also rely on the statements made by the Federal Court of Appeal in Lee v Canada (Correctional Service), 2017 FCA 228 regarding the plenary powers of the Federal Courts. As I do not find it useful to repeat their analysis in these reasons, I refer the parties and the reader to the cited portions of those decisions.
[44] Additionally, I find that P.H. has standing to challenge the constitutionality of the Transitional Provisions because he is directly affected by them. Since he committed the offence in June 2009, his ineligibility period to apply for a record suspension has been extended by five (5) years. In addition, he must meet the more onerous criteria to obtain a record suspension. As the Court found in Chu, I am also of the view that P.H. has the requisite standing to challenge the retrospective application of the CRA amendments as they apply to all affected offenders (Chu at para 90). In reaching this conclusion, I rely on the decision of the Supreme Court of Canada in R v Nur, 2015 SCC 15 [Nur], a challenge to the mandatory minimum sentences found in paragraph 95(2)(a) of the Criminal Code. There, the Supreme Court of Canada confirmed that a claimant who otherwise has standing can seek a declaration of invalidity under section 52 of the Constitution Act, 1982 on the basis that the law has unconstitutional effects, whether on the claimant or on third parties (Nur at paras 50-51, 63-65; Chu at paras 90-104).
B. Evidence
[45] The second issue I must address is whether the Court has sufficient evidence before it and whether it can rely on the evidence submitted in Chu.
[46] I agree with the parties that there is sufficient evidence before the Court to support a declaration of invalidity.
[47] The issue in this case is essentially one of law, namely whether the retrospective application of amendments to the CRA constitutes changes to the conditions of an offender’s original “punishment” in a manner that is contrary to sections 11(h) and 11(i) of the Charter. As noted in Chu, to determine this issue, the Court must consider the following two (2) questions: (1) whether a criminal record constitutes punishment within the meaning of section 11 of the Charter; and (2) if so, whether the retrospective effect of the Transitional Provisions has the effect of adding to that punishment (Chu at para 110).
[48] To determine the first question, it is necessary to refer to the decision of the Supreme Court of Canada in R v KRJ, 2016 SCC 31 [KRJ], where the Court restated the test for punishment. A measure meets the test for punishment if it: (1) is a consequence of conviction that forms part of the arsenal of sanctions to which an accused might be liable in respect of a particular offence; and either (2) is imposed in furtherance of the purpose and principles of the sentence; or (3) has a significant impact on an offender’s liberty or security interests (KRJ at para 41).
[49] In Chu, the SCBC concluded that the first and second branches of the KRJ test were met. It reached this conclusion by relying only on the jurisprudence and without discussing any of the evidence. It was only when examining the third branch of the KRJ test – whether criminal records significantly affect liberty and security interests – that the SCBC considered the evidence. The SCBC concluded that since the first and second branches of the KRJ test were met, it was not necessary to consider the alternative third branch (Chu at para 179). It nevertheless proceeded to do so on the basis that the case was one of first instance.
[50] I recognize that I do not have the benefit of the extensive evidence that was before the SCBC. In this case, P.H. has filed an affidavit regarding his personal circumstances in which he sets out the impact of having a criminal record. He has also filed a report from a psychologist that discusses albeit briefly, the psychological effect of having a criminal record. In contrast, Mr. Chu filed a number of expert reports in addition to his own personal evidence. To demonstrate the impacts of having a criminal record, Mr. Chu filed expert reports from Dr. Neil Boyd, a professor and Director of the School of Criminology at Simon Fraser University, and from Dr. Anthony Doob, a professor emeritus at the Centre of Criminology at the University of Toronto. The AGC also filed an expert report from Dr. Alfred Blumstein, an emeritus professor of Urban Systems and Operations Research at Heinz College at Carnegie Mellon University (Chu at para 183). The three (3) experts were cross-examined and the transcripts of the cross-examinations were before the SCBC. The SCBC found the experts to be eminently qualified to give the evidence outlined in their reports (Chu at para 184). The parties did not object to the experts’ qualifications or reports, and the parties made no submissions as to the weight to accord the expert evidence. The AGC’s own expert acknowledged that a criminal record makes it more difficult for an offender to find employment, which, in turn, has further negative consequences on past offenders, especially in terms of marriage and family life (Chu at paras 193, 198).
[51] The reports in question are not before this Court. Nevertheless, I note that the Supreme Court of Canada stated in Nur that, when examining the issue of standing to seek a general declaration of invalidity, a “court may look not only at the offender’s situation, but at other reasonably foreseeable situations where the impugned law may apply” (Nur at para 58; Chu at para 93). I agree with the parties that I may consider the Chu case as another “reasonably foreseeable situation”.
[52] Given the recognition by the AGC’s own expert in Chu that criminal records significantly affect liberty and security interests and given the uncontested findings of the SCBC, I am satisfied that I can rely on the SCBC’s findings on this particular issue.
[53] I am also of the view that I may take judicial notice of the impact of a criminal record in general as well as that of a record suspension, particularly as provided in the CRA and other laws such as the Canadian Human Rights Act, RSC 1985, c H-6 [CHRA], which protects against discrimination based on a “conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered” (CHRA, s 3(1)).
C. Judicial Comity
[54] The principle of judicial comity is well recognized by the judiciary in Canada. In the Federal Court, the principle is to the effect that a substantially similar decision rendered by a judge of this Court should be followed in the interest of advancing certainty in the law (Almrei v Canada (Citizenship and Immigration), 2007 FC 1025 at para 61 [Almrei]). There are a number of exceptions to the principle: (1) the existence of a different factual matrix or evidentiary basis between the two (2) cases; (2) the issue to be decided is different; (3) the previous decision failed to consider legislation or binding authorities that would have produced a different result; and (4) the decision followed would create an injustice (Almrei at para 62).
[55] The parties rely on Morguard Investments Ltd v De Savoye, [1990] 3 SCR 1077 [Morguard] to argue that the rules of judicial comity apply in this case and militate in favour of recognizing the Chu decision. They submit that the SCBC’s reasoning in Chu is complete and compelling, and they urge me to rely on that reasoning in the particular circumstances of this case to declare the Transitional Provisions constitutionally invalid.
[56] In Morguard, the Supreme Court of Canada considered whether the courts of British Columbia ought to recognize a judgment rendered by the courts of Alberta at a time when the defendant in a personal action did not live in Alberta. In discussing the need for recognition and enforcement of judgments within Canada, the Supreme Court of Canada emphasized that the considerations underlying the rules of comity applied with much greater force between the units of a federal state (Morguard at 1098). After noting that the creation of a single country presupposed a basic goal of stability and unity, the Court went on to find that the Canadian judicial structure was arranged in such a manner that any concerns about differential quality of justice among the provinces had no real foundation. It particularly noted that all superior court judges are appointed and paid by the federal authorities and subject to final review by the Supreme Court of Canada (Morguard at 1099-1100). The Supreme Court of Canada found that, in relation to the recognition and enforcement of judgments within Canada, the courts in one province should give full faith and credit to the judgments given by a court in another province or territory, so long as that court has properly, or appropriately, exercised jurisdiction in that action.
[57] It is unnecessary for me to decide whether the principles of judicial comity apply in this instance since I am of the view that the considerations that underlie judicial comity – deference and respect, order and fairness, stability and unity – nevertheless apply in this case. The constitutional issue to be decided in this case is the same as that decided in Chu. Despite the CRA being a federal statute, the current state of the law in Canada is such that different versions of section 4 of the CRA are being applied in the provinces and territories, resulting in record suspensions being more difficult to obtain for certain individuals outside British Columbia and Ontario. It is in the interests of justice that the amendments to section 4 of the CRA be applied consistently across Canada. In addition, as the Supreme Court of Canada noted in Morguard, I also consider that judges of the Federal Courts, like judges of provincial superior courts, are appointed and paid by the federal authorities, and they are subject to final review by the Supreme Court of Canada. I can think of no reason why the decision of the SCBC should not have persuasive value in this case, especially considering there is nothing in the record demonstrating that the SCBC failed to consider legislation or binding authorities that would have yielded a different result.
[58] For all of these reasons, I am satisfied that I may take notice of the judgment in Chu and its reasoning in conducting my own legal analysis to answer the constitutional questions at issue in this case.
D. Constitutional Challenge
[59] Before determining the merits of the constitutional challenge, I must address an issue that arose at the end of my deliberations. I became aware that the notice of constitutional question was not served on the attorneys general of the territories. Subsections 57(1) and 57(2) of the Act require notice to the AGC and the attorney general of “each province” at least ten (10) days before the hearing of a constitutional question. While these provisions do not refer to the attorneys general of the territories, subsection 35(1) of the Interpretation Act, RSC 1985, c I-21 stipulates that the word “province” in federal enactments “includes Yukon, the Northwest Territories and Nunavut”. The attorneys general of the territories were therefore entitled to notice.
[60] In an attempt to rectify the defective service, the AGC served the notice of constitutional question on the attorneys general of the territories by fax on December 20, 2019 and January 2, 2020. Then, on January 21, 2020, the AGC wrote to the attorneys general of the territories advising and assuring them that, if they wished to intervene, it would ask the Court to allow them to participate by adducing evidence and offering written and oral arguments. The AGC also indicated that it would appreciate a response at their earliest convenience, as it was required to follow up with the Court on the issue of the defective service by January 31, 2020. With its letter, the AGC also included the relevant proceedings and pleadings filed with the Court, and it informed the attorneys general of the territories that they could obtain the recording of the April 1, 2019 hearing from the Court.
[61] The Attorney General of Yukon and the Attorney General of the Northwest Territories have since replied to confirm that they do not intend to intervene. The Attorney General of Nunavut has yet to reply, but I am satisfied sufficient time was provided for a response. Given the assurances provided by the AGC in its January 21, 2020 letter, I am confident that if the Attorney General of Nunavut intended to participate in this matter, there would have been some communication with either the parties or the Court by now.
[62] I must now decide whether to give effect to these late notices by exercising my discretion under subsection