Fisher v. Canada (Attorney General)

Fisher v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2013-10-30
Neutral citation
2013 FC 1108
File numbers
T-950-12
Decision Content
Federal Court
Cour fédérale
Date: 201301030
Docket: T-950-12
Citation: 2013 FC 1108
Ottawa, Ontario, October 30, 2013
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
PAUL FISHER
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an application under subsection 18(1) of the Federal Courts Act, RSC 1985, c F-7, and subsection 24(1) of the Canadian Charter of Rights and Freedoms (Charter) for judicial review of a resolution of the Parole Board of Canada (Parole Board) dated 19 February 1996 that altered the parole conditions of offenders placed on “parole reduced status” (Amendment). The Applicant seeks a declaration that his rights under section 7 of the Charter have been, and continue to be, infringed by the Amendment.
BACKGROUND
[2] The Applicant is a jazz musician who resides in Surrey, British Columbia. He is serving a life sentence that was imposed in 1972, when he was 15 years of age. He has been on full parole since 1983.
[3] After more than eight years of demonstrated stability in the community, the Applicant was granted parole-reduced status (PRS) on 24 September 1991. The attainment of PRS status was important to the Applicant, as it was the greatest level of freedom he could reasonably expect to ever obtain, and it allowed him to travel as a musician and promote his music. His parole officer at that time noted that the Applicant’s progress had been continuous, and that he “has demonstrated that he has adjusted beyond all expectations.” The only conditions placed on him were to:
a) Report once per year to the Vancouver Central Parole Office; and
b) Report any change in address to his parole supervisor.
[4] On 19 February 1996, the Amendment was passed, requiring offenders on PRS to comply with paragraph 161(1)(a) of the Corrections and Conditional Release Regulations, SOR/92-060 (Regulations), from which they had been previously exempt by virtue of subsection 133(6) of the Corrections and Conditional Release Act, SC 1992, c 20 (Act). The purpose of the Amendment was to increase the monitoring of offenders, as there had been concerns about the safety of the community and parolees engaging in further criminal activity (Applicant’s Affidavit, Exhibit L).
[5] The Applicant alleges that the practical effect of the Amendment was that it granted his parole officers the discretion to change his terms of parole. It also meant that the Applicant had to report in person every three months, which was the lowest level of intervention. The Applicant was not informed in writing of this Amendment until 24 January 2011, and no hearing ever took place. The Applicant found out about it when he was contacted by his parole officer, Dave Tocheri, in the fall of 1996, but was never given anything in writing to this effect at that time.
[6] During the intervening 15 years, the Applicant says he has been subject to greater restrictions than simply reporting to his parole officer. In fact, Mr. Toheri expressly regarded the Applicant as being back on regular parole, and recommended parole conditions prohibiting the Applicant from drinking (Applicant’s Affidavit, pages 130, 155). Other restrictions placed on the Applicant included monthly police reporting and the requirement of travel permits. At one point the Applicant says his movement was restricted to a 12-square-block area around his home. On another occasion, a parole officer “marched” the Applicant into the hallway of his apartment in order to get an updated photograph for one of her files, and forced him to be photographed in front of his neighbours.
[7] The Applicant says that the Amendment has had serious negative consequences on his quality of life. Most importantly, the restrictions placed upon him have effectively destroyed his career in music, which the Applicant says “saved his life.” The Applicant’s various parole officers also told him that he was unable to leave Canada, and it was not until 2011 that his parole officer confirmed that, because the Applicant had PRS status, he could get a passport and travel outside of Canada.
[8] Since the Applicant was convicted in 1972, he has maintained an exemplary record of:
a) Compliance with the law;
b) Adherence to correctional institute regulations and parole conditions;
c) Involvement in his community; and
d) General social progression and responsibility.
[9] The Applicant says that he has contacted many different people and institutions seeking advice on what he could do about the impact of the Amendment on his freedom and life. These included Mr. Stockwell Day, the Association in the Defence of the Wrongly Convicted, Pivot Legal Society, and many different lawyers. The Applicant’s counsel wrote to the Parole Board in November, 2010 on the Applicant’s behalf. The Parole Board responded by way of letter dated 24 January 2011, informing him about the Amendment.
[10] The Applicant also wrote to the Parole Board attempting to appeal his parole conditions (Applicant’s Affidavit, Exhibit BB). This letter is undated but was received on 8 December 2011. By letter dated 14 December 2011, the Vice-Chairperson of the Parole Board of Canada Appeals Division confirmed that no “decision” had been rendered in the Applicant’s case. The letter said that as the notification the Applicant received on 24 January 2011 informing him of the Amendment was not a decision, the Appeal Division is “unable to take any action.”
DECISION UNDER REVIEW
[11] The Amendment under review in this application ultimately decided that all offenders on parole, including the Applicant, would be governed by the standard reporting requirements set out in subsection 161(1) of the Regulations. The Parole Board said that it was making this change because:
…Difficulties have been encountered in maintaining contact with some offenders, and other offenders have become involved in further criminal activity.
In view of the foregoing, the Board is of the view that it is not possible to monitor adequately the on-going risk presented by offenders in the community who are on “parole reduced status,” given the requirement only to report (in person or in writing) once per year.
[12] The Parole Board concluded that it considered it necessary for offenders to “report to the parole supervisor as instructed by the parole supervisor.”
ISSUES
[13] The Applicant submits the following issue in this application:
a. Whether the Parole Board, in passing the Amendment and implementing it through the Correctional Service of Canada, acted contrary to section 7 of the Charter.
STATUTORY PROVISIONS
[14] The following provisions of the Act are applicable to this proceeding:
Relief from conditions
133. (6) The releasing authority may, in accordance with the regulations, before or after the release of an offender,
(a) in respect of conditions referred to in subsection (2), relieve the offender from compliance with any such condition or vary the application to the offender of any such condition; or
(b) in respect of conditions imposed under subsection (3), (4) or (4.1), remove or vary any such condition.
Dispense ou modification des conditions
133. (6) L’autorité compétente peut, conformément aux règlements, soustraire le délinquant, avant ou après sa mise en liberté, à l’application de l’une ou l’autre des conditions du présent article, modifier ou annuler l’une de celles-ci.
[15] The following provisions of the Regulations are applicable to this proceeding:
161. (1) For the purposes of subsection 133(2) of the Act, every offender who is released on parole or statutory release is subject to the following conditions, namely, that the offender
(a) on release, travel directly to the offender's place of residence, as set out in the release certificate respecting the offender, and report to the offender's parole supervisor immediately and thereafter as instructed by the parole supervisor;
(b) remain at all times in Canada within the territorial boundaries fixed by the parole supervisor;
(c) obey the law and keep the peace;
(d) inform the parole supervisor immediately on arrest or on being questioned by the police;
(e) at all times carry the release certificate and the identity card provided by the releasing authority and produce them on request for identification to any peace officer or parole supervisor;
(f) report to the police if and as instructed by the parole supervisor;
(g) advise the parole supervisor of the offender's address of residence on release and thereafter report immediately
(i) any change in the offender's address of residence,
(ii) any change in the offender's normal occupation, including employment, vocational or educational training and volunteer work,
(iii) any change in the domestic or financial situation of the offender and, on request of the parole supervisor, any change that the offender has knowledge of in the family situation of the offender, and
(iv) any change that may reasonably be expected to affect the offender's ability to comply with the conditions of parole or statutory release;
(h) not own, possess or have the control of any weapon, as defined in section 2 of the Criminal Code, except as authorized by the parole supervisor; and
(i) in respect of an offender released on day parole, on completion of the day parole, return to the penitentiary from which the offender was released on the date and at the time provided for in the release certificate.
161. (1) Pour l'application du paragraphe 133(2) de la Loi, les conditions de mise en liberté qui sont réputées avoir été imposées au délinquant dans tous les cas de libération conditionnelle ou d'office sont les suivantes :
a) dès sa mise en liberté, le délinquant doit se rendre directement à sa résidence, dont l'adresse est indiquée sur son certificat de mise en liberté, se présenter immédiatement à son surveillant de liberté conditionnelle et se présenter ensuite à lui selon les directives de celui-ci;
b) il doit rester à tout moment au Canada, dans les limites territoriales spécifiées par son surveillant;
c) il doit respecter la loi et ne pas troubler l'ordre public;
d) il doit informer immédiatement son surveillant en cas d'arrestation ou d'interrogatoire par la police;
e) il doit porter sur lui à tout moment le certificat de mise en liberté et la carte d'identité que lui a remis l'autorité compétente et les présenter à tout agent de la paix ou surveillant de liberté conditionnelle qui lui en fait la demande à des fins d'identification;
f) le cas échéant, il doit se présenter à la police, à la demande de son surveillant et selon ses directives;
g) dès sa mise en liberté, il doit communiquer à son surveillant l'adresse de sa résidence, de même que l'informer sans délai de :
(i) tout changement de résidence,
(ii) tout changement d'occupation habituelle, notamment un changement d'emploi rémunéré ou bénévole ou un changement de cours de formation,
(iii) tout changement dans sa situation domestique ou financière et, sur demande de son surveillant, tout changement dont il est au courant concernant sa famille,
(iv) tout changement qui, selon ce qui peut être raisonnablement prévu, pourrait affecter sa capacité de respecter les conditions de sa libération conditionnelle ou d'office;
h) il ne doit pas être en possession d'arme, au sens de l'article 2 du Code criminel, ni en avoir le contrôle ou la propriété, sauf avec l'autorisation de son surveillant;
i) s'il est en semi-liberté, il doit, dès la fin de sa période de semi-liberté, réintégrer le pénitencier d'où il a été mis en liberté à l'heure et à la date inscrites à son certificat de mise en liberté.
ARGUMENTS
The Applicant
The Legal Background
[16] According to the Applicant, the Amendment is a “regulation” as that term is described in the Interpretation Act, RSC 1985, c I-21, subsection 2(1):
“regulation” includes an order, regulation, rule, rule of court, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established
(a) in the execution of a power conferred by or under the authority of an Act, or
Règlement proprement dit, décret, ordonnance, proclamation, arrêté, règle judiciaire ou autre, règlement administratif, formulaire, tarif de droits, de frais ou d’honoraires, lettres patentes, commission, mandat, résolution ou autre acte pris :
a) soit dans l’exercice d’un pouvoir conféré sous le régime d’une loi fédérale;
[17] The Applicant submits that the Amendment is such an instrument issued, made, or established by the Board pursuant to its authority to relieve offenders of any or all conditions of release under subsection 133(6) of the Act. As the Amendment is a regulation, the Applicant says that the limitation period stipulated in section 18.1 of the Federal Courts Act does not apply.
[18] Pursuant to sections 97 and 98 of the Act, the Commissioner of Correction passed the Commissioner’s Directive 715-1 “Community Supervision” (CD 715-1). CD 715-1, which sets out the reporting requirements of offenders on PRS status (Huang Affidavit, Exhibit A). Should the Applicant fail to abide by the terms of his parole, his parole may be revoked and he will be returned to custody.
[19] The Applicant says it is contrary to CD 715-1 for those with PRS status to face monthly police reporting and to have their travel restricted within certain boundaries (CD 715-1, paragraph 22). CD 715-1 mandates a decreasing level of intervention as an offender’s parole progresses. The lowest possible level is “Level E,” which requires the offender to report at least every three months. The Applicant has been subject to Level E since the Amendment.
[20] Presently, the Parole Board of Canada Policy Manual, Section 7.1, paragraph 6, says that offenders who have been granted PRS status are relieved of all conditions under the Regulations, other than the requirement to:
a) Obey the law and fulfill all legal and social responsibilities;
b) Notify the district director of any change of address; and
c) Report to one’s parole officer as instructed to do so by the parole officer.
Section 7 of the Charter
[21] For the Applicant’s section 7 Charter rights to be engaged, his deprivation of liberty must have been caused by the action of the state. The Applicant says that is the case here; the only reason the Applicant’s liberty has been curtailed is because of the Amendment.
[22] An individual’s liberty interest is engaged whenever a law prevents a person from making fundamental personal choices. The interest protected by section 7 of the Charter must be broadly interpreted in consideration of the principles underlying the Charter as a whole and the need to protect personal autonomy (Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 [Blencoe] at paragraph 49). Liberty necessarily includes the notions of human dignity, personal autonomy, privacy and choice in decisions regarding an individual’s fundamental being (Blencoe at paragraphs 50-53).
[23] Liberty interests are engaged in a variety of circumstances, including when persons are compelled to appear for fingerprinting, produce documents or testify, or not loiter in public areas (Blencoe at paragraph 49). In the context of correctional law, the Supreme Court of Canada has held that a change in the way a sentence is served can amount to a deprivation of liberty within the meaning of section 7 of the Charter (Cunningham v Canada, [1993] 2 SCR 143 [Cunningham] at paragraph 14).
[24] In R v Beare, [1988] 2 SCR 387 [Beare], the Supreme Court of Canada held that it was a deprivation of liberty for offenders to be compelled to appear at a time and place for identification purposes. However, in that case, the statutory provision in question was determined to be in accordance with the principles of fundamental justice.
[25] In the circumstances of this case, the Applicant says that his liberty has been restricted by reporting requirements and travel restrictions. The Amendment necessarily deprived the Applicant of his liberty rights because any exercise of discretion by parole officers will entail some type of liberty restriction.
[26] The Applicant submits that his right to liberty under section 7 of the Charter has been deprived in a way that is not in accordance with the principles of fundamental justice. This is due to the fact that the Amendment is too broad. While its purpose is to monitor the ongoing risk posed by offenders with PRS status in the community, it inherently deprives the Applicant and other persons on PRS of their liberty without good reason. The Amendment is also arbitrary in its application to the Applicant, as its stated purpose has no bearing on him.
[27] In considering whether a law is overly broad, the Court must determine whether the means chosen are necessary to achieve the objective (R v Heywood, [1994] 3 SCR 761 [Heywood] at paragraph 49). If the Parole Board used means that are broader than required to accomplish the objective of the Amendment, then the principles of fundamental justice will be violated because the individual’s rights will have been limited for no reason (Heywood).
[28] The Parole Board’s stated objective in this case was to adequately monitor the “ongoing risk posed by offenders in the community who are on [PRS].” The Amendment was made in response to certain events that were said to have shown that it was difficult to maintain contact with some offenders, and that other offenders on PRS had become involved in further criminal activity.
[29] Based on this, it appears that the purpose of the Amendment was to prevent further criminal activity by monitoring offenders on PRS more closely. However, in doing so, the Parole Board was required to use a means that was both proportional to the objective and that did not curtail the freedom of individuals who the law did not need to capture. The Applicant was never accused of not keeping contact, nor is there any suggestion he was committing further offences while on parole. The uncontroverted evidence is that he was a reformed offender who had integrated himself into his community and had developed a musical career.
[30] In passing the Amendment, the Parole Board unnecessarily restricted the liberty of persons who, like the Applicant, maintained contact with their parole officers and posed no risk to the public. There was no need or legitimate basis on which to increase the Applicant’s monitoring, and for that reason the Amendment is too broad.
[31] The Applicant submits that the Parole Board could have used less invasive means to achieve its objective. For example, it could have:
• Conducted a case-by-case analysis of each offender on PRS;
• Conducted a risk analysis before granting PRS to an offender;
• Revoked PRS for those offenders who breach the terms of their parole or otherwise demonstrate that they are incapable of being adequately monitored;
• “Grandfathered” PRS status such that the present definition would only apply to those being granted such privileges and rights for the first time after the Amendment.
[32] In fact, the Act allows for such a case-by-case risk analysis of offenders. The default position is that all offenders will be subject to the conditions in subsection 161(1) of the Regulations, but the Parole Board may relieve or vary the application of parole conditions with respect to a particular offender. On a plain reading of the Act, the Applicant says it is impermissible to vary the parole conditions of offenders, including those discretionary conditions imposed by parole officers, on anything other than a case-by-case basis. In this case, the Parole Board’s mass variance is contrary to its jurisdiction.
[33] The Applicant submits that his case is similar to that of Hay v Canada (National Parole Board), [1985] FCJ No 610 (TD) [Hay]. In Hay, an inmate serving a life sentence was transferred to a minimum security prison due to his outstanding record and rehabilitation over the course of seven years. As the result of a “policy change,” he was transferred out of the minimum security prison. The Federal Court concluded as follows at page 9 of the decision:
…The decision to effect such an involuntary transfer, without any fault or misconduct on the part of the inmate, as it is abundantly clear was done in the applicant's case is the quintessence of unfairness and arbitrariness.
It may be that the policy change invoked by the respondents affects a contemplated class of inmates, but that, in the absence of fault, cannot prevail over the inmate's individually guaranteed legal rights…
…[H]aving clearly earned the privilege of being placed in the farm annex, this applicant despite his serious crimes in 1977, is not to be moved about like cordwood, simply because he is in a class of inmates contemplated by the change of policy…
[34] In Hay, the Court said that had the policy been invoked to prevent Hay’s transfer to the minimum security facility at first instance that would have been regrettable, but unassailable. However, the transfer offended sections 7, 9 and 12 of the Charter, and Hay was ordered to be returned to the minimum security institution.
Section 1 of the Charter
[35] The Applicant points out that the Respondent has the burden of justifying the deprivation of the Applicant’s rights under the Charter, and submits that the Respondent cannot do so, in this case.
Remedy
[36] Section 24(1) of the Charter says that:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s’adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances.
[37] The Court has flexibility in deciding how to remedy a Charter violation. Subsection 24(1) of the Charter allows the Court to craft a responsive remedy that takes into account the nature of the Charter violation and the context of the specific legislation at issue (Schachter v Canada, [1992] 2 SCR 679 [Schachter]). Charter remedies should be approached with a generous and expansive view to ensure that those who benefit from the Charter enjoy its full benefit and protection (Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 [Doucet-Boudreau]).
[38] In paragraphs 55-59 of Doucet-Boudreau, the Supreme Court of Canada laid out five principles to guide judges in arriving at an appropriate and just remedy:
1) The remedy chosen should meaningfully vindicate the right violated;
2) The means should be legitimate within the framework of our constitutional democracy;
3) The remedy in vindicating the right must not extend beyond the powers of the court;
4) The remedy must be fair to the defendant and should not impose substantial hardships that are unrelated to the securing of the right;
5) The judicial approach to remedies must remain flexible and responsive to the needs of a given case.
[39] Courts have a very broad discretion to right the wrongs that arise in each particular case (Doucet-Boudreau at paragraph 52). This discretion is so broad that it has allowed courts to reduce criminal sentences to reflect and denounce Charter breaches (R v Nasogaluak, 2010 SCC 6) and award monetary damages, even absent bad faith on the state’s part (Vancouver (City) v Ward, 2010 SCC 27).
[40] The Applicant submits that the Court should look at what has been taken away from him, and attempt to return those rights to him to the greatest extent possible. The Applicant earned the freedom he previously enjoyed by over twenty years of social progression, rehabilitation, and compliance with the law and his parole conditions. In his case, he ought to be returned to the state of freedom he enjoyed before he was arbitrarily deprived of that freedom by the Amendment.
[41] This remedy is supported by the factors listed in Doucet-Boudreau. It is a meaningful vindication of the Applicant’s rights, it is legitimate within the framework of the Constitution, and it does not prevent the Parole Board from monitoring the Applicant. However, even if the remedy requested does impact the Parole Board’s role, the court is justified in ordering it so long as it does not “unnecessarily depart” from its adjudicative role in granting remedies that address the Charter violation (Doucet-Boudreau at paragraph 56). The remedy also does not go beyond the Court’s role and it is fair to the Respondent. The Respondent would actually be required to allocate fewer resources to supervising the Applicant, and the Respondent cannot reasonably suggest that the remedy would expose the public to any risk.
[42] Finally, the remedy is flexible and responsive to the needs of this case. Although the class of persons subject to PRS is unknown, it is reasonable to believe it is both small in size and finite in time. If the Respondent disagrees with this it is free to provide information to the contrary, but the Respondent has chosen not to do so. Furthermore, this is not a case of the Applicant seeking a constitutional exemption. He is not asking to be exempt from the parole scheme; he is seeking to have his liberty interests and significant efforts to rehabilitate himself respected. The Amendment, in and of itself, is not a deprivation of anyone’s liberty; however, because it is overbroad in the means employed, it deprives the Applicant of his liberty. Thus, an individual remedy should be tailored to the Applicant.
[43] The Applicant seeks the following relief, in addition to costs:
• A declaration that his rights have been and continue to be infringed by the Respondent;
• A declaration that the Amendment is ultra vires the Parole Board’s jurisdiction;
• A declaration that any variation of the terms of the Applicant’s parole conditions since 19 February 1996 was done without jurisdiction to do so;
• An order of certiori quashing the parole conditions currently on the Applicant, other than those in place on 18 February 1996; and
• A permanent injunction prohibiting the Respondent, and all persons having notice of this Order, from imposing any conditions on his parole, other than those in place on 18 February 1996, unless and until he conducts himself in a manner that would lawfully justify changing those conditions.
The Respondent
Preliminary Issue
[44] Section 18.1 of the Federal Courts Act states that an applicant has 30 days to file an application for judicial review from the time the decision is made. The impugned decision in this case, the Amendment, is dated 19 February 1996. The Applicant concedes that the Amendment was communicated to him in writing on 24 January 2011, and verbally in 1996. The Notice of Application for this proceeding was issued on 25 May 2012, fifteen years after the decision and 16 months after the decision was communicated to the Applicant by way of letter.
[45] Based on either date discussed above, the Applicant is clearly and substantially out of time to seek judicial review of this decision. The Applicant has not sought leave to extend the time to commence his application for judicial review, nor has he provided any evidence on this application that would justify the exercise of the court’s discretion to extent the time.
[46] The factors considered for an extension of time were laid out in Canada (Attorney General) v Hennelly¸ (1999) 167 FTR 158 (FCA):
1) A continuing intention to pursue the application;
2) That the application has some merit;
3) That no prejudice to the respondent has arisen from the delay;
4) That a reasonable explanation for the delay exists.
[47] First, the Applicant’s failure to apply for an extension of time within a timely manner, or at all, indicates an absence of continuing intention to pursue the application for judicial review throughout the entire delay.
[48] Second, this judicial review application has no merit. The Amendment does not prescribe any specific reporting requirement but rather leaves the frequency of reporting to the discretion of the parole supervisor. This decision simply reaffirms the application of subsection 161(1) of the Regulations, and if the Applicant is dissatisfied with the current quarterly reporting requirements, his remedy must lie elsewhere.
[49] Third, the Applicant has not shown an absence of prejudice. Bringing an application for judicial review long after the decision has been made can be prejudicial, in that it is contrary to the principle of finality of administrative decisions. As was said in Apotex Inc v Canada (Minister of Health), 2011 FC 1308 [Apotex] at paragraphs 20-21:
20 Allowing Apotex to avoid the 30-day filing requirement on this application would open the door to a multitude of similar belated applications and thereby effectively extinguish the requirement. It would also sidestep the need for finality for discrete administrative decisions that are, as here, directly attacked as unlawful. The Federal Court of Appeal well-expressed the principle of finality in the following passages from Canada (AG) v Trust Business Systems, 2007 FCA 89, [2007] F.C.J. No. 379 (QL):
28 In Canada v. Berhad, [2005] F.C.J. No. 1302, 2005 FCA 267, Létourneau J.A. wrote that the thirty-day limit for commencing judicial review applications is in the best interest of the public because it brings finality to administrative decisions and security to those who comply with the decision or who enforce compliance with it. At paragraph 60 he stated:
The importance of that public interest is reflected in the relatively short time limits for the commencement of challenges to administrative decisions -- within 30 days from the date on which the decision is communicated, or such further time as the Court may allow on a motion for an extension of time. That time limit is not whimsical. It exists in the public interest, in order to bring finality to administrative decisions so as to ensure their effective implementation without delay and to provide security to those who comply with the decision or enforce compliance with it, often at considerable expense.
29 Accordingly, when the Tribunal issued its determination on the motion on April 25, 2005, the applicant was required under subsection 18.1(2) of the FCA to file its notice of application for judicial review within thirty days, as Trust's substantive right to its complaint were finally decided. As the applicant did not do so within the allotted time frame, it is now time-barred to challenge this issue. The authorities relied on by the applicant in Ernst Zündel and Canadian Association for Free Expression Inc., [2000] 4 F.C. 255 and R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577 are distinguishable as they deal with interlocutory issues as opposed to those that have the potential to bring finality to the proceedings.
21 I agree with counsel for the Respondent that Apotex’s position “is no more than a colourable device intended to permit Apotex to avoid violating both the letter and the spirit of section 18.1(2) of the Federal Courts Act and Rule 302”. In my view, the 30-day filing requirement does apply to this application and can only be overcome by a meritorious motion to extend time.
[50] As in Apotex, the Applicant mischaracterizes the nature of the government action to remove it from the reach of section 18.1. He attempts to circumvent the 30-day limitation by characterizing the decision as a “regulation” as defined in the Interpretation Act, in effect arguing that it is therefore not subject to the time limit.
[51] The Respondent submits that the Amendment is a discrete administrative decision within the Board’s discretionary jurisdiction and, therefore, the 30-day limitation applies. The decision did not enact a regulation or other legislation or quasi-legislative instrument, nor did it create new policy. Rather, it confirmed that the Parole Board would no longer exercise its discretion to permit a modification of the standard requirements of subsection 161(1) of the Regulations. Put another way, the Decision confirmed the application of subsection 161(1) to offenders on PRS, as it also applies to all other paroled offenders.
[52] The Amendment also does not have the ongoing effects that the Applicant attributes to it, and it does not, on its face, apply any restrictions to the Applicant such that it can be characterized as a policy or regulation. The minimal reporting requirement that it placed on the Applicant stems from subsection 161(1) of the Regulations, and not from any ongoing Parole Board policy. The Decision is therefore not an ongoing course of conduct affecting the Applicant to which the 30-day limitation does not apply (Krause v Canada, [1999] FCJ No 179).
Section 7 of the Charter
[53] The Supreme Court of Canada discussed section 7 liberty interests in the specific context of correctional law in Cunningham, above. For the Applicant to succeed, he must show that the Amendment constitutes a violation of his section 7 rights and that this deprivation is contrary to the fundamental interests of justice. As to whether there has been a deprivation of liberty which attracts the protection of section 7 of the Charter, the two subsidiary questions to be asked are whether there has been a demonstrated deprivation of liberty and, if so, whether the deprivation is serious enough to attract Charter protection (Cunningham, at paragraph 7).
[54] The Amendment has not resulted in a violation of the Applicant’s rights under section 7 of the Charter. It does not impose any new conditions on the Applicant, but rather refers him back to subsection 161(1) of the Regulations, which in turns leaves the frequency of reporting within the discretion of his parole supervisor.
[55] Furthermore, the Applicant’s own evidence is that he has enjoyed a full life in the community, despite any change in the reporting requirements. It appears as though the reporting requirements have not deprived the Applicant of his liberty at all. However, if it is found that there has been a deprivation of the Applicant’s section 7 rights, the Respondent submits that this deprivation is in accordance with the principles of fundamental justice.
[56] The Supreme Court discussed the principles of fundamental justice in this context at paragraph 17 of Cunningham:
Having concluded that the appellant has been deprived of a liberty interest protected by s. 7 of the Charter, we must determine whether this is contrary to the principles of fundamental justice under s. 7 of the Charter. In my view, while the amendment of the Parole Act to eliminate automatic release on mandatory supervision restricted the appellant's liberty interest, it did not violate the principles of fundamental justice. The principles of fundamental justice are concerned not only with the interest of the person who claims his liberty has been limited, but with the protection of society. Fundamental justice requires that a fair balance be struck between these interests, both substantively and procedurally (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 502-3, per Lamer J.; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 212, per Wilson J.; Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869, at p. 882, per Iacobucci J.). In my view the balance struck in this case conforms to this requirement.
[57] The change at issue in Cunningham had the potential to affect the offender to a much greater degree that the Amendment in the present case. In Cunningham, the change in policy deprived the offender of the opportunity for release after serving 2/3 of his sentence. It is beyond question that the possible deferral of an offender’s release date by 1/3 of his sentence engages his liberty interest to a much greater extent that a quarterly reporting requirement for an offender who already has the privilege of full parole. Nonetheless, in Cunningham the Supreme Court determined that the deprivation of liberty was not contrary to the principles of fundamental justice:
18. The first question is whether, from a substantive point of view, the change in the law strikes the right balance between the accused’s interests and the interests of society. The interest of society in being protected against the violence that may be perpetrated as a consequence of the early release of inmates whose sentence has not been fully served needs no elaboration. On the other side of the balance lies the prisoner’s interest in an early conditional release.
19. The balance is struck by qualifying the prisoner’s expectation regarding the form in which the sentence would be served. The expectation of mandatory release is modified by the amendment permitting a discretion to prevent early release where society’s interests are endangered. A change in the form in which a sentence is served, whether it be favourable or unfavourable to the prisoner, is not, in itself, contrary to any principle of fundamental justice. Indeed, our system of justice has always permitted correctional authorities to make appropriate changes in how a sentence is served, whether the changes relate to place, conditions, training facilities, or treatment. Many changes in the conditions under which sentences are served occur on an administrative basis in response to the prisoner's immediate needs or behaviour. Other changes are more general. From time to time, for example, new approaches in correctional law are introduced by legislation or regulation. These initiatives change the manner in which some of the prisoners in the system serve their sentences.
20. The next question is whether the nature of this particular change in the rules as to the form in which the sentence would be served violates the Charter. In my view, it does not. The change is directly related to the public interest in protecting society from persons who may commit serious harm if released on mandatory supervision. Only if the Commissioner is satisfied on the facts before him that this may be the case can he refer the matter to the Parole Board for a hearing. And only if the Board is satisfied that there is a significant danger of recidivism can it order the prisoner’s continued incarceration. Thus the prisoner’s liberty interest is limited only to the extent that this is shown to be necessary for the protection of the public. It is difficult to dispute that it is just to afford a limited discretion for the review of parole applicants who may commit an offence causing serious harm or death. Substantively, the balance is fairly struck.
[58] The Respondent submits that the present case involves a fair balance between the Applicant’s liberty interest and the public’s interest in having offenders on parole properly supervised. This balance is struck by leaving reporting requirements to the parole supervisor’s discretion, as reflected in subsection 161(1)(a) of the Regulations.
Section 1 of the Charter
[59] Even if the Court finds a breach, the Amendment is saved by section 1 of the Charter. The Respondent submits that the evidence demonstrates that the impugned action: (1) pursues the pressing and substantial objective of the protection of society; (2) is rationally connected to that objective in that it is directed at the supervision of the offender while on full parole; (3) minimally impairs a Charter right in that it does not impose any new conditions on the offender; and (4) does not have a disproportionately severe effect on the offender to whom it applies (R v Oakes, [1986] 1 SCR 103 at page 139).
Remedy
[60] The Respondent submits that the goal sought by the Applicant, namely to be returned to his pre-19