Whaling v. Canada (His Majesty the King)

Whaling v. Canada
Court (s) Database
Federal Court Decisions
Date
2024-05-09
Neutral citation
2024 FC 712
File numbers
T-455-16
Decision Content
Date: 20240509
Docket: T-455-16
Citation: 2024 FC 712
Ottawa, Ontario, May 9, 2024
PRESENT: The Honourable Mr. Justice Pamel
CERTIFIED CLASS PROCEEDING
BETWEEN:
KRISTEN MARIE WHALING
(FORMERLY KNOWN AS CHRISTOPHER JOHN WHALING)
Plaintiff
and
HIS MAJESTY THE KING
Defendant
JUDGMENT AND REASONS
I. Overview [1] The Corrections and Conditional Release Act, SC 1992, c 20 [CCRA] was proclaimed in force in 1992, ushering in what was thought at the time to be a modern, comprehensive framework for corrections and conditional release of offenders. The CCRA completely replaced the old Penitentiary Act and Parole Act, and introduced the concept of Accelerated Parole Review [APR], a more streamlined process for parole review by the Parole Board as compared with regular parole review, for first-time offenders who qualified pursuant to the criteria set out in the CCRA. APR was automatic, meaning that there was no need for the offender to apply for it; conducted on paper, meaning that it took place without a hearing; and based upon less stringent criteria for granting parole (the “no reasonable grounds to believe” test), with no discretion on the part of the Parole Board to decide against releasing the offender. Initially, the APR regime was only available for those eligible for full parole [APR full parole]; however, in July 1997, amendments to the CCRA [1997 Amendments] expanded the regime to include those offenders who were eligible for day parole [APR day parole], with an earlier parole eligibility date―one sixth of the sentence or six months, whichever was longer.
[2] The underlying action relates to the passage and implementation in 2011 of certain provisions of the Abolition of Early Parole Act, SC 2011, c 11 [AEPA], which retrospectively removed access to APR for first-time, non-violent federal penitentiary inmates who were, because of those provisions of the AEPA, held in custody beyond their APR release dates. The Supreme Court subsequently declared the provisions of the AEPA in question to be unconstitutional on the grounds that the retrospective removal of APR amounted to double punishment and a violation of paragraph 11(h) 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] (Canada (Attorney General) v Whaling, 2014 SCC 20, [2014] 1 SCR 392 [Whaling SCC] and Liang v Canada, 2014 BCCA 190, [2014] BCJ No 962 (QL)). The claim now advanced by the plaintiff, Kristen Marie Whaling [Ms. Whaling], formerly known as Christopher John Whaling, against His Majesty the King [His Majesty], as responsible for, inter alia, the operation of the Correctional Service of Canada [CSC] and the Parole Board of Canada [Parole Board], is on behalf of approximately 3,252 past inmates seeking damages payable under subsection 24(1) of the Charter as a result of such violations.
[3] On November 19, 2020, Mr. Justice Barnes certified the underlying action as class proceeding (Whaling v Her Majesty the Queen, 2020 FC 1074; aff’d 2022 FCA 37) [Certification Order], at which time he also certified a series of common issues; with respect to three of these issues, Ms. Whaling now brings a motion pursuant to Rule 220 of the Federal Courts Rules, SOR/98-106, for the determination of preliminary questions of law [PQOLs]. Two weeks prior to the hearing of this matter, the parties wrote to the Court to confirm their agreement that PQOL #2 need not be determined at this preliminary stage, as such would not advance or simplify the class proceedings. Consequently, the remaining questions to be determined as part of the present motion are the following:
[PQOL #1:] Did s. 28 of the ITOA [International Transfer of Offenders Act, SC 2004, c 21] apply to Category C and D subclass members such that the Parole Board was not required to review them for APR day parole until six months after their date of transfer?
…
[PQOL #3:] (1) Can the estate of a deceased class member in this action claim Canadian Charter of Rights and Freedoms forming part of the Constitution Act, 1982 (“Charter”) damages for violation of a s. 11(h) Charter right?; and (2) if the answer to (1) is yes, then do provincial estate statutes providing for an “alive as of” date prohibit or limit recovery of those Charter damages?
[4] For the reasons that follow, I would answer “yes” to both PQOL #1 and to both elements of PQOL #3.
II. Facts [5] The parties proceeded by way of an agreed statement of facts. In short, having been convicted under the Criminal Code, RSC, 1985, c C-46, for weapons trafficking, possession of unauthorized firearms and possession of prohibited/restricted firearms with ammunition―offences committed in British Columbia in April 2006―Ms. Whaling was sentenced on September 29, 2010 to four years and six months in prison, after receiving credit for a period of pre-trial custody. At the start of her sentence, her eligibility date for unescorted temporary absences was June 29, 2011, on which day Ms. Whaling would also be eligible for APR day parole, having served by then one sixth (nine months) of her sentence.
[6] By letter dated April 4, 2011, the Parole Board informed Ms. Whaling that it would not be reviewing her case for APR day or full parole on account of recent amendments made to the CCRA by subsection 10(1) of the AEPA which, as stated, retrospectively repealed the APR process; this repeal had become effective some six days earlier, on March 28, 2011. After APR was abolished in her case, Ms. Whaling became eligible for day parole review under the regular (i.e. non-APR) review process on September 29, 2011, which was three months later than the date on which she would have become eligible under the APR process. Her full parole eligibility date remained March 29, 2012, her statutory release date remained September 27, 2013, and the warrant expiry date for her sentence remained March 28, 2015 (four years and six months from her sentencing). After Ms. Whaling was transferred to another institution so as to be closer to her family, on October 11, 2011, the Parole Board denied Ms. Whaling’s day parole and full parole through the regular (non-APR) review process.
[7] On November 9, 2011, Ms. Whaling was released on bail by order of the British Columbia Court of Appeal pending the appeal of her conviction, and remained lawfully at large for 540 days before returning to the penitentiary to continue serving her sentence (around May 3, 2013). To account for the interruption in her sentence while her appeal was being heard, Ms. Whaling’s full parole eligibility date was amended to September 20, 2013 (from March 29, 2012), her statutory release date was amended to March 21, 2015 (from September 27, 2013) and her new warrant expiry date for her sentence became September 18, 2016 (from March 28, 2015). There was no change at the time to her eligibility for day parole under regular parole review since that date (September 29, 2011) had already passed by the time Ms. Whaling had returned to prison. In any event, as stated, the Parole Board had denied Ms. Whaling’s request for day parole on October 11, 2011.
[8] In the meantime, on or around May 6, 2011, Ms. Whaling and two other inmates commenced a constitutional challenge in the British Columbia Supreme Court, seeking to have subsection 10(1) of the AEPA declared to be of no force and effect on the basis that the provision violated their paragraph 11(h) rights pursuant to the Charter. On June 26, 2012, and while Ms. Whaling was out on bail pending the appeal of her conviction, the British Columbia Supreme Court held that subsection 10(1) of the AEPA indeed violated paragraph 11(h) of the Charter (Whaling v Canada (Attorney General), 2012 BCSC 944). This decision was unanimously upheld at the British Columbia Court of Appeal on November 2, 2012 (Whaling v Canada (Attorney General), 2012 BCCA 435) and eventually, as stated, by the Supreme Court of Canada on March 20, 2014 in Whaling SCC.
[9] Subsequent to the issuance of the British Columbia Supreme Court decision, the Parole Board conducted an in-office review and considered whether to direct that Ms. Whaling be released on parole pursuant to APR. On July 3, 2013, on initial review without a hearing, the Parole Board rendered a negative decision, stating that it was satisfied that there were reasonable grounds for believing that Ms. Whaling was likely to commit an offence involving violence before the expiration of her sentence (CCRA subsections 126(1) and (2)). The Parole Board referred her case to a new panel for an oral hearing pursuant to subsections 126(3) and (4) of the CCRA. On July 25, 2013, at the oral hearing, the Parole Board interviewed Ms. Whaling and concluded that it was satisfied that there were no reasonable grounds to believe that, if released, Ms. Whaling was likely to commit an offence involving violence before the expiration of her sentence; thus, the Parole Board directed her release on APR day parole, and the following day, Ms. Whaling was released.
[10] On September 20, 2013, CSC issued Ms. Whaling a full parole certificate, which reflected a release date of September 20, 2013 and a warrant expiry date of September 18, 2016. On March 15, 2016, Ms. Whaling filed the underlying statement of claim for this class proceeding, in which Ms. Whaling seeks damages pursuant to subsection 24(1) of the Charter on behalf of herself and all Class Members for the breach of their paragraph 11(h) Charter rights. It has been admitted by the parties that at all material times, Ms. Whaling and the Class Members were “offenders who [were] eligible for accelerated parole review under sections 125 and 126” for the purposes of section 119.1 of the CCRA.
III. Legislative Framework [11] I have included the relevant legislative provisions as they existed at the time in the Annex to my decision. Without getting into specifics or exceptions, prior to July 1997, the relevant sections of the CCRA were grouped as follows:
Eligibility for Parole – sections 119 to 121 provided for the portion of sentences that must be served before an offender is eligible for day or full parole.
Parole Reviews – sections 122 to 124 provided for the process and timelines for regular parole review leading up to an offender’s possible release on day and full parole.
Accelerated Parole Reviews – sections 125 and 126 provided for the process and timelines for APR leading up to an offender’s possible release on APR full parole. As stated, day parole was not initially reviewable under the APR scheme.
[12] As it read prior to March 28, 2011, section 125 of the CCRA set out the qualification criteria for offenders under APR full parole, based on the offence committed, and required CSC to review the cases of such offenders for the purpose of referral to the Parole Board for a determination under section 126 of the CCRA for possible release. The process for APR was set out in section 126, which read, also prior to March 28, 2011, as follows:
Review by Board
Examen par la Commission
126 (1) The Board shall review without a hearing, at or before the time prescribed by the regulations, the case of an offender referred to it pursuant to section 125.
126 (1) La Commission procède sans audience, au cours de la période prévue par règlement ou antérieurement, à l’examen des dossiers transmis par le Service ou les autorités correctionnelles d’une province.
Release on full parole
Libération conditionnelle totale
(2) Notwithstanding section 102, if the Board is satisfied that there are no reasonable grounds to believe that the offender, if released, is likely to commit an offence involving violence before the expiration of the offender’s sentence according to law, it shall direct that the offender be released on full parole.
(2) Par dérogation à l’article 102, quand elle est convaincue qu’il n’existe aucun motif raisonnable de croire que le délinquant commettra une infraction accompagnée de violence s’il est remis en liberté avant l’expiration légale de sa peine, la Commission ordonne sa libération conditionnelle totale.
Report to offender
Rapport au délinquant
(3) If the Board does not direct, pursuant to subsection (2), that the offender be released on full parole, it shall report its refusal to so direct, and its reasons, to the offender.
(3) Si elle est convaincue du contraire, la Commission communique au délinquant ses conclusions et motifs.
Reference to panel
Réexamen
(4) The Board shall refer any refusal and reasons reported to the offender pursuant to subsection (3) to a panel of members other than those who reviewed the case under subsection (1), and the panel shall review the case at the time prescribed by the regulations.
(4) La Commission transmet ses conclusions et motifs à un comité constitué de commissaires n’ayant pas déjà examiné le cas et chargé, au cours de la période prévue par règlement, du réexamen du dossier.
[Emphasis added.]
[Je souligne.]
[13] In conjunction with the enactment of the CCRA in 1992, and under the authority of subsection 156(1) thereof, the Governor in Council made the Corrections and Conditional Release Regulations, SOR/92-620 [CCRR]. At the time, the CCRR included section 159, which provided for the applicable time periods within which the review and referral under the APR regime set out in the CCRA were to take place:
159(1) The Service shall review the case of an offender to whom section 125 of the Act applies within one month after the offender’s admission to a penitentiary, or to a provincial correctional facility where the sentence is to be served in such a facility.
159 (1) Le Service doit examiner le cas du délinquant visé à l’article 125 de la Loi dans le mois qui suit son admission dans un pénitencier ou dans un établissement correctionnel provincial lorsqu’il doit purger sa peine dans cet établissement.
(2) The Service shall refer the case of an offender to the Board pursuant to subsection 125(4) of the Act not later than three months before the offender’s eligibility date for full parole.
(2) Le Service doit, conformément au paragraphe 125(4) de la Loi, transmettre à la Commission le cas du délinquant au plus tard trois mois avant la date de son admissibilité à la libération conditionnelle totale.
(3) The Board shall, pursuant to subsection 126(1) of the Act, review the case of an
offender not later than seven weeks before the offender’s eligibility date for full parole.
(3) La Commission doit, conformément au paragraphe 126(1) de la Loi, examiner le cas du délinquant au plus tard sept semaines avant la date de son admissibilité à la libération conditionnelle totale.
(4) A panel shall, pursuant to subsection 126(4) of the Act, review the case of an offender before the offender’s eligibility date for full parole.
(4) Le comité doit, conformément au paragraphe 126(4) de la Loi, réexaminer le cas du délinquant avant la date de son admissibilité à la libération conditionnelle totale.
[Emphasis added.]
[Je souligne.]
[14] Nearly five years later, the 1997 Amendments came into effect, which, as stated, expanded APR to include day parole. The new amendments were limited to the addition of section 119.1 (within the “Eligibility for Parole” provisions) and section 126.1 (within the “Accelerated Parole Reviews” provisions) to the CCRA; sections 125 and 126 of the CCRA were not amended, nor were any changes made to the CCRR. Sections 119.1 and 126.1 of the CCRA read:
When eligible for day parole — offenders eligible for accelerated parole review
Temps d’épreuve pour la semi-liberté — délinquants admissibles à la procédure d’examen expéditif
119.1 The portion of the sentence of an offender who is eligible for accelerated parole review under sections 125 and 126 that must be served before the offender may be released on day parole is six months, or one sixth of the sentence, whichever is longer.
119.1 Le temps d’épreuve pour l’admissibilité à la semi-liberté est, dans le cas d’un délinquant admissible à la procédure d’examen expéditif en vertu des articles 125 et 126, six mois ou, si elle est supérieure, la période qui équivaut au sixième de la peine.
…
[…]
Release on day parole
Application
126.1 Sections 125 and 126 apply, with such modifications as the circumstances require, to a review to determine if an offender referred to in subsection 119.1 should be released on day parole.
126.1 Les articles 125 et 126 s’appliquent, avec les adaptations nécessaires, à la procédure d’examen expéditif visant à déterminer si la semi‑liberté sera accordée au délinquant visé à l’article 119.1.
[Emphasis added.]
[Je souligne.]
I should mention that the definition of “sentence” as it read in the CCRA included “a sentence imposed by a foreign entity on a Canadian offender who has been transferred to Canada under the [ITOA]” (CCRA at section 2).
[15] Pursuant to section 119.1 of the CCRA, offenders must have served at least six months, or one sixth of the sentence, whichever is longer, before being eligible for APR day parole―this would include any portion of a sentence imposed abroad on a Canadian offender who has been transferred to Canada under the ITOA. In addition, so as to incorporate the allowance for APR day parole into the existing APR scheme, which only covered, up to that point, APR full parole, section 126.1 of the CCRA simply provided that sections 125 and 126 of the CCRA were to apply “with such modifications as the circumstances require”.
[16] I should mention that the parties are at odds as to whether there exists a statutory or regulatory deadline by which the Parole Board was required to review an individual for APR day parole release; that is the issue under PQOL #2, which I need not address. Suffice it to say that the parties seem to be in agreement that it was CSC’s policy that inmates eligible for APR day parole be released on their APR day parole eligibility day; His Majesty accepts that the absence of a statutory or regulatory deadline for releasing offenders on day parole would not authorize CSC to arbitrarily detain an offender beyond their APR day parole eligibility date, in line with its Charter obligations and the principles outlined in section 4 of the CCRA.
[17] Finally, under the heading “Sentence Calculation”, the relevant provisions of the ITOA are sections 27 and 28, which state the following:
If eligible for parole, etc., before transfer
Admissibilité antérieure à la date du transfèrement
27 If, under the Corrections and Conditional Release Act or the Criminal Code, the day on which a Canadian offender is eligible for a temporary absence, day parole or full parole is before the day of their transfer, the day of their transfer is deemed to be their day of eligibility.
27 Si, en raison de l’application de la Loi sur le système correctionnel et la mise en liberté sous condition ou du Code criminel, la date à laquelle le délinquant canadien devient admissible à la permission de sortir, à la semi‑liberté ou à la libération conditionnelle totale est antérieure à la date de son transfèrement au Canada, cette dernière date est réputée être la date d’admissibilité.
Review by Board
Examen
28 Despite sections 122 and 123 of the Corrections and Conditional Release Act, the Parole Board of Canada is not required to review the case of a Canadian offender until six months after the day of their transfer.
28 Par dérogation aux articles 122 et 123 de la Loi sur le système correctionnel et la mise en liberté sous condition, la Commission des libérations conditionnelles du Canada n’est pas tenue d’examiner le dossier du délinquant canadien avant l’expiration d’un délai de six mois suivant la date de son transfèrement au Canada.
[Emphasis added.]
[Je souligne.]
[18] Keeping in mind that the ITOA was enacted in 2004, seven years after the coming into force of the 1997 Amendments, and aside from any reference to a temporary absence, section 27 of the ITOA, which deals with the date of parole eligibility, provides that where an offender’s date of eligibility for parole pursuant to sections 119 to 121 of the CCRA―the eligibility requirements―is prior to their transfer to Canada, upon transfer, their date of eligibility for parole―whether day parole or full parole―is deemed to be the date of their transfer. Ms. Whaling takes no issue with this deeming provision for international offenders transferred pursuant to the ITOA (going forward, I will refer to such offenders as “ITOA transferees”).
[19] Section 28 of the ITOA (which, going forward, I will refer to simply as “section 28”) does not provide for a process or timelines for parole review. Rather, the provision triggers the suspension of any otherwise applicable timelines for parole review by the Parole Board for the first six months following the transfer of a Canadian offender to Canada. Ms. Whaling asserts that such suspension would apply only to regular parole review―contemplated under sections 122 and 123 of the CCRA―and not to the timelines for APR, whatever those timelines may be; she argues that the “express wording of [section 28] indicates the provision does not apply to APR parole”. Although the context of PQOL #1 is limited to APR day parole, it seems clear that the submission on this issue by Ms. Whaling is broader, and would in any event apply to all APR, including APR full parole.
[20] I should also mention that no issue is made of the fact that any parole review in respect of ITOA transferees would ostensibly take place after their eligibility date for parole (being the date of their transfer to Canada), rather than prior to their parole eligibility date as reflective of parole review under the CCRA. Ms. Whaling accepts that section 28 creates a hiatus period for regular parole review during the first six months of the transfer to Canada of ITOA transferees, what His Majesty calls a “buffer” of up to six months, for the Parole Board to conduct its review of any particular case. Where the parties disagree is whether this suspension period, or hiatus, also captures ITOA transferees eligible for APR, or more particularly in this case, for APR day parole. Consequently, from a practical perspective, the issue of the application of section 28 under PQOL #1 only becomes relevant for ITOA transferees who otherwise qualify for APR day parole either prior to, or less than six months after, their day of transfer, i.e., the Category C and Category D subclasses.
[21] Although section 28 dealt only with the suspension of any applicable timelines for parole review, I enquired of Ms. Whaling’s counsel during the hearing what regime would be available to inform the process and timelines for APR-eligible ITOA transferees, given that parole review usually takes place prior to the offender’s applicable parole eligibility date, whereas ITOA transferees whose parole eligibility date would have otherwise passed have a deemed eligibility date on the date of their transfer, meaning that any parole review would ostensibly take place after their parole eligibility date. Ms. Whaling describes the situation as a regulatory void, and asserts that the common law creates a public law duty upon CSC to refer, and upon the Parole Board to review, such cases within “a reasonable period” in the event that no timelines are otherwise provided by regulations. As no written submissions had been made by Ms. Whaling, I requested that the parties provide supplemental written submissions on this issue.
[22] In her supplemental submissions, Ms. Whaling expanded on her argument that in such an event, CSC, being under a statutory duty to review cases under APR eligibility, would be under a common law public duty to review and refer those cases to the Parole Board. Ms. Whaling stated that the Parole Board is also under a similar duty to make a decision with respect to those cases “in a reasonable time” or, in the event that the Parole Board is not able to conduct its review before the inmate’s APR eligibility date (which of course would be the case for all ITOA transferees), such review is to be done “as soon as practicable”, subject to possible recourse by the inmates to the courts for the determination of what constitutes “a reasonable time” or “as soon as practicable”, and compulsion remedies such as mandamus, so that the purpose of the statute in providing for APR is not thwarted (Groupe Maison Candiac Inc v Canada (Attorney General), 2020 FCA 88 at para 74; Wu v Vancouver (City), 2019 BCCA 23 (leave ref’d 2019 CanLII 55721 (SCC)) at paras 38–41; Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44 at paras 145–155; Dass v Canada (Minister of Employment and Immigration) (1996), 193 NR 309 (FCA) at para 17; Ramsay v Toronto (City) Commissioners of Police (Div Ct) (1988), 1988 CanLII 4706 (ON SC), 66 OR (2d) 99; Austin v Canada (Minister of Consumer and Corporate Affairs) (1986), 10 FTR 86 (FCTD) at para 6).
[23] His Majesty argued in his supplemental submissions that Ms. Whaling went too far in her supplemental submissions in trying to assess what “a reasonable time” would be in the circumstances of this case. I agree; that issue is not before me as that is the issue under PQOL #2. I disagree, however, with His Majesty when he states in his supplemental submissions, quite categorically, that his “position that [section 28] applies provides a full answer as to why PQOL #1 must be answered in the affirmative, and no further analysis is required.” From my perspective, it is not that simple, and such an approach simply fails to address the arguments of Ms. Whaling as regards the reference within section 28 only to the regular parole provisions of the CCRA, and not to the APR provisions. In any event, what I gather from His Majesty’s supplemental submissions is that he does not dispute certain conceptual portions of Ms. Whaling’s submissions, and does not take issue with the proposition that, in the context of the Parole Board’s statutory duty to conduct APR in cases involving ITOA transferees, the common law can fill the gap where no such time period is otherwise prescribed by regulations, and create a duty upon the Parole Board to review such cases within a reasonable period of time.
IV. Analysis A. PQOL #1: Did section 28 of the ITOA apply to Category C and D subclass members such that the Parole Board was not required to review them for APR day parole until six months after their date of transfer? (1) The principles to be applied [24] It should be kept in mind that we are dealing here with not only a question of statutory interpretation, but also a question of possible conflict between statutes; the rules that apply in each situation are somewhat different and should not be conflated.
[25] We start with the principles of statutory interpretation, most recently reaffirmed by the Supreme Court in R v McColman, 2023 SCC 8 [McColman]:
[35] Under the modern approach to statutory interpretation, “the words of a statute must be read ‘in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament’”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 117, citing Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also Canada v. Alta Energy Luxembourg S.A.R.L., 2021 SCC 49, at para. 37. In determining the meaning of the text, a court cannot read a statutory provision in isolation, but must read the provision in light of the broader statutory scheme: Rizzo, at para. 21.
[36] In its written submissions and during oral argument, the Crown placed great weight on the broader purposes underlying the HTA. But a purposive analysis does not grant the interpreter licence to disregard the clear meaning of the statute: see R. v. D.A.I., 2012 SCC 5, [2012] 1 S.C.R. 149, at para. 26.
[Emphasis added.] (See also Michel v Graydon, 2020 SCC 24 at para 21.)
[26] Although a purposive analysis cannot grant licence to disregard the clear meaning of the statute, “statutory interpretation cannot be founded on the wording of the legislation alone” (Rizzo at para 21; see also McColman at para 35). Rather, as indicated by the Supreme Court of Canada in Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association, 2022 SCC 30, per Justice Karakatsanis at paragraph 140:
Context and consequences remain essential (see, e.g., Uber Technologies Inc. v. Heller, 2020 SCC 16). A purely textual reading is inconsistent with a broad and remedial approach to statutory interpretation. And, as Abella J. and I have noted elsewhere, “words matter, policy objectives matter, and consequences matter” (TELUS Communications Inc. v. Wellman, 2019 SCC 19, [2019] 2 S.C.R. 144, at para. 108).
[Emphasis added.]
[27] As regards the issue of possible conflicting statutes, the Supreme Court in Lévis (City) v Fraternité des policiers de Lévis Inc, 2007 SCC 14, set out the principle of the presumption of legislative coherence:
[47] The starting point in any analysis of legislative conflict is that legislative coherence is presumed, and an interpretation which results in conflict should be eschewed unless it is unavoidable. The test for determining whether an unavoidable conflict exists is well stated by Professor Côté in his treatise on statutory interpretation:
According to case law, two statutes are not repugnant simply because they deal with the same subject: application of one must implicitly or explicitly preclude application of the other.
(P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), at p. 350)
Thus, a law which provides for the expulsion of a train passenger who fails to pay the fare is not in conflict with another law that only provides for a fine because the application of one law did not exclude the application of the other (Toronto Railway Co. v. Paget (1909), 1909 CanLII 10 (SCC), 42 S.C.R. 488). Unavoidable conflicts, on the other hand, occur when two pieces of legislation are directly contradictory or where their concurrent application would lead to unreasonable or absurd results. A law, for example, which allows for the extension of a time limit for filing an appeal only before it expires is in direct conflict with another law which allows for an extension to be granted after the time limit has expired (Massicotte v. Boutin, 1969 CanLII 97 (CSC), [1969] S.C.R. 818).
[Emphasis added.]
[28] The Supreme Court continued a few paragraphs further:
[58] When a conflict does exist and it cannot be resolved by adopting an interpretation which would remove the inconsistency, the question that must be answered is which provision should prevail. The objective is to determine the legislature’s intent. Where there is no express indication of which law should prevail, two presumptions have developed in the jurisprudence to aid in this task. These are that the more recent law prevails over the earlier law and that the special law prevails over the general (Côté, at pp. 358-62). The first presumes that the legislature was fully cognizant of the existing laws when a new law was enacted. If a new law conflicts with an existing law, it can only be presumed that the new one is to take precedence. The second presumes that the legislature intended a special law to apply over a general one since to hold otherwise would in effect render the special law obsolete. Neither presumption is, however, absolute. Both are only indices of legislative intent and may be rebutted if other considerations show a different legislative intent (Côté, at pp. 358‑59).
[Emphasis added.]
(2) The definition of the subclasses at issue [29] As regards the constitution of the two subclasses at issue, pursuant to the Certification Order, Class Members are defined, in essence, as past or present offenders as described in the AEPA, the CCRA and the ITOA who were sentenced before March 28, 2011―in other words, before the coming into force of subsection 10(1) of the AEPA―and who, as a result of that provision removing their access to APR, were released from prison after their eligibility date under APR day parole―in other words, with reference to section 119.1 of the CCRA, after the expiry of the mandatory period of the sentence which had to be served under the circumstances, being six months or one sixth of their sentence, whichever was longer. In addition, the certified class contains subclass members who were transferred to Canada under the ITOA, with APR day parole eligibility dates that were either prior to, or less than six months after, their day of transfer to Canada. The Category C and D subclasses were certified as follows:
iii. Category C subclass – individuals who were internationally transferred to Canada under the ITOA with APR day parole eligibility dates that were either prior to, or less than six months after, their day of transfer, who were reviewed and released on APR parole or regular parole; and
iv. Category D subclass – individuals who were internationally transferred to Canada under the ITOA with APR day parole eligibility dates that were either prior to, or less than six months after, their day of transfer, who subsequently were denied regular parole solely due to grounds which would not have been applicable had the APR criteria been applied.
[Emphasis added.]
(3) Determination of the issue [30] To be clear, the issue before me is not to determine what timelines would apply in this context to APR day parole for ITOA transferees. On that issue, as mentioned earlier, the parties are at odds as to whether there exists a statutory or regulatory deadline by which the Parole Board was required to review ITOA transferees for APR day parole release at all. The issue before me is limited to determining whether the six-month suspension period or hiatus of such review set out in section 28, whatever the timeline for such review may ultimately be, is applicable to APR day parole for ITOA transferees.
[31] Ms. Whaling submits that the six-month hiatus for parole review set out in section 28 does not apply to APR day parole for the Category C and D subclasses, or to APR generally, when considering the plain language of the provision in conjunction with the principle of implied exclusion; she argues that by its very words, section 28 references only sections 122 and 123, i.e., the regular parole review provisions of the CCRA, in a “precise and unequivocal” manner, and to the exclusion of sections 125 to 126.1 of the CCRA which deal with APR; thus, the ordinary meaning of section 28 must play a dominant role in its interpretation (Canada v Loblaw Financial Holdings Inc, 2021 SCC 51 [Loblaw] at para 41). Ms. Whaling adds that section 27 of the ITOA―which addresses eligibility―specifically addresses both full parole and day parole, making no distinction in the process of parole review, whether regular parole review or APR. Consequently, if Parliament had intended for section 28―which addresses the nature or process of parole review―to apply broadly to both regular parole review and APR, it could have tracked similar language in specifically mentioning that it applied to both regular parole review and APR. Rather, Parliament has contextualized the application of section 28 only to the regular parole review process of sections 122 and 123 of the CCRA, thus seemingly excluding its application from the APR process.
[32] In addition, Ms. Whaling invokes the implied exclusion principle, which provides that when a statutory provision explicitly mentions one or more items but is silent with respect to comparable items, it is presumed that such silence is deliberate and reflects the intention to exclude the items that are not mentioned; in this case, the application of section 28 to the APR process of the CCRA (Canada (Canadian Private Copying Collective) v Canadian Storage Media Alliance, [2004] FCJ No 2115 (FCA) at para 96). Ms. Whaling argues that by making no mention of the APR scheme (sections 119.1, 125, 126 and 126.1 of the CCRA), Parliament must be presumed to have intended for the hiatus set out in section 28 not to apply to APR, but only to regular parole review. She asserts that this interpretation is consistent with the general scheme and purpose of APR, which is to provide eligible prisoners, for the most part first-time non‑violent offenders, earlier release by way of a process that is simplified and accelerated as compared with regular parole review on the basis of a single question: are there no reasonable grounds to believe that the offender, if released, is likely to commit a violent offence? This formulated purpose for APR is largely drawn from Whaling SCC and the lower‑level decisions leading up to the Supreme Court’s decision, and is not contested by His Majesty in this case.
[33] In so doing, Ms. Whaling asks that I not follow the Supreme Court of British Columbia’s decision in Misko v National Parole Board, September 30, 2011, Vancouver Registry, Docket No 25841 [Misko], seemingly the only case where the interplay between section 28 and the APR scheme of the CCRA was at issue. The decision in Misko was made approximately six months after APR was abolished (and well before subsection 10(1) of the AEPA was successfully challenged). In that case, Mr. Misko, a self-represented prisoner, had reached his APR as well as his regular parole eligibility dates prior to his transfer to Canada on December 15, 2010; pursuant to section 27 of the ITOA, he became eligible for APR day and full parole as well as regular day and full parole upon the date of his transfer. CSC referred Mr. Misko’s case to the National Parole Board [NPB], the name of the Parole Board at the time, on February 23, 2011; however, the NPB did not complete the processing of the referral prior to APR being repealed by the AEPA on March 28, 2011. Mr. Misko applied for mandamus and a writ of habeas corpus, on the argument that the NPB’s unreasonable delay in processing his APR referral had unlawfully deprived him of the opportunity to obtain APR before it was repealed; all parties accepted that Mr. Misko would have been granted parole under the APR criteria had the NPB completed the processing of the referral before March 28, 2011.
[34] While Justice Sewell, as he then was, expressed a “great deal of sympathy” for Mr. Misko and noted that his referral for APR appeared to have been delayed by “unwarranted bureaucratic rigidity”, he nonetheless dismissed Mr. Misko’s application for a mandamus primarily on jurisdictional grounds which have no relevance to the underlying class proceeding, and he also dismissed the application for a writ of habeas corpus because firstly, Mr. Misko had no absolute right to be released from custody given that the term of his lawfully imposed sentence had not yet expired, and secondly, because Mr. Misko had not established that he had been denied any lawful right to a parole review. In support of the second reason, Justice Sewell relied on section 28 of the ITOA for the proposition that the NPB was not required to review Mr. Misko’s case (whether for regular parole or APR day or full parole) until six months after the date of his transfer, i.e., not before June 15, 2011. The judge therefore concluded that Mr. Misko had not established that he had been denied a review for accelerated parole within any time that he was lawfully entitled to have one. In addressing whether a writ of habeas corpus should be issued, Justice Sewell noted:
[15] I also am satisfied that, even before the repeal of ss. 125 and 126 of the Corrections and Co