Canada (Attorney General) v. J.P.

Canada (Attorney General) v. J.P.
Court (s) Database
Federal Court of Appeal Decisions
Date
2010-04-07
Neutral citation
2010 FCA 90
File numbers
A-202-09
Notes
Reported Decision
Decision Content
Date: 20100407
Docket: A-202-09
Citation: 2010 FCA 90
CORAM: BLAIS C.J.
NADON J.A.
EVANS J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
J.P.
Respondent
Heard at Vancouver, British Columbia, on October 28, 2009.
Judgment delivered at Ottawa, Ontario, on April 7, 2010.
REASONS FOR JUDGMENT BY: NADON J.A.
CONCURRED IN BY: BLAIS C.J.
PELLETIER J.A.
Date: 20100407
Docket: A-202-09
Citation: 2010 FCA 90
CORAM: BLAIS C.J.
NADON J.A.
EVANS J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
J.P.
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1] On April 24, 2009, Mosley J. of the Federal Court, in decision 2009 FC 402, allowed the respondent’s application for judicial review which challenged the National Parole Board’s (the “Board”) calculation of his parole eligibility dates.
[2] The main issue raised by this appeal is the interpretation of the word “sentence” found in subsections 119(1), 120(1) and 128(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (the “CCRA”). More particularly, the issue is whether the word “sentence” found in these provisions means only the custodial component of a custody and supervision order under the Youth Criminal Justice Act, S.C. 2002, c. 1 (the “YCJA”), or whether it means both components of such an order.
The Facts
[3] A brief summary of the relevant facts will be helpful to an understanding of the issues before us.
[4] The respondent murdered his mother in 1999. At the time, he was 14 years old.
[5] On March 7, 2008, the respondent was convicted of second degree murder and was sentenced, pursuant to subparagraph 42(2)(q)(ii) of the YCJA, to 22 months of custody and 36 months of community supervision.
[6] Because he was 22 years old at the time of sentencing, the respondent was committed to a provincial correctional facility for adults to serve his sentence, namely, the Fraser Regional Correctional Centre in Maple Ridge, British Columbia. In July 2008, he was transferred to the Vancouver Island Regional Correctional Centre.
[7] Because of his placement in a correctional facility for adults, the Board asserted jurisdiction over him.
[8] Because of its view that the respondent was serving a sentence of 58 months and, hence, a sentence of over two years for the purpose of subsection 119(1) of the CCRA, the Board determined that the respondent’s parole eligibility, in accordance with paragraph 119(1)(c), was as follows: (i) for day parole: April 17, 2009; (ii) for full parole: October 17, 2009; (iii) warrant expiry: January 6, 2013.
[9] The respondent did not agree with the Board’s calculation and sought a review thereof. In his view, the calculation of his parole eligibility was to be made in accordance with paragraph 119(1)(d) of the CCRA, as his sentence was one of less than two years, i.e. the 22 months of custody. On October 3, 2008, the Board advised him that the calculation would not be changed.
[10] With the help of legal counsel, the respondent made a further attempt to convince the Board that it had wrongly calculated his eligibility dates. By letter dated December 9, 2008, the Board advised the respondent that the calculation would stand.
[11] On January 7, 2009, the respondent filed his judicial review application in the Federal Court. Specifically, he asserted that the Board had miscalculated his eligibility date and that he was eligible for day parole after serving 1/6 of his 22-month custodial sentence and eligible for full parole after serving 1/3 of his 22-month custodial sentence.
[12] He later amended his application to seek a declaration that his parole expired at the end of his 22-month custodial sentence.
[13] On April 24, 2009, Mosley J. rendered the following Judgment:
IT IS THE JUDGMENT OF THIS COURT that
1. for the purpose of calculating the applicant’s eligibility for day and full parole, only the 22 month custodial portion of the applicant’s sentence is to be included by the National Parole Board and the calculation shall not include the conditional supervision portion of the sentence;
2. the National Parole Board’s jurisdiction to grant, terminate or revoke parole and to supervise the applicant expires at the end of the 22 month custodial portion of the applicant’s youth sentence subject to the following provision;
3. should custody be continued until the end of the conditional supervision portion of the sentence or the applicant is returned to custody for the remainder of the sentence by Order of the Youth Justice Court, the Board will retain jurisdiction;
4. the applicant is awarded costs for this application according to the normal scale.
[14] On May 4, 2009, the appellant commenced the appeal now before us.
The Issues
[15] The appeal raises the following issues:
1. Whether the term “sentence” for the purpose of calculating parole eligibility under the CCRA includes only a portion of the sentence imposed under subparagraph 42(2)(q)(ii) of the YCJA;
2. Whether the Board ceases to have jurisdiction over an individual transferred to an adult correctional facility pursuant to the provisions of the YCJA once the custodial portion of the sentence imposed under subparagraph 42(2)(q)(ii) ends, irrespective of whether the individual remains on full parole at the time; and
3. Whether the Board is obliged to assert jurisdiction over an individual who is committed to custody in an adult correctional facility during the conditional supervision portion of a sentence imposed under subparagraph 42(2)(q)(ii) of the YCJA.
[16] Before proceeding, I should make it clear that the issues before us are now moot in that, based on the Board’s calculations of the respondent’s parole eligibility, he was eligible for full parole on October 17, 2009. Consequently, our decision has no practical application in the circumstances of this case. However, in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, the Supreme Court of Canada indicated that in certain circumstances, notwithstanding that a case raised only a hypothetical or abstract question, the Court could hear the matter. In formulating this view, the Court identified three basic policies behind the mootness doctrine:
1. The Court’s capability of resolving legal disputes finds its roots in the adversarial relationship between parties who have a stake in the outcome of a case. This ensures the likelihood that the issues will be “well and fully argued by parties who have a stake in the outcome” (see. pages 358-359 of the Reasons).
2. The doctrine of mootness promotes judicial economy in that there is a need to “ration scarce judicial resources among competing claimants” (see. p. 360 of the Reasons).
3. Courts should be reluctant to adjudicate matters in the absence of a “dispute affecting the rights of the parties”, as this may be seen as an intrusion into the role of the legislative branch (see. p. 370 of the Reasons).
[17] In the present matter, I am satisfied that the promotion of judicial economy plays in favour of a determination of the issues raised by the appeal. Given the nature of parole eligibility calculations and the inherent delays in the judicial and administrative processes, cases such as the one now before us will, more often than not, be moot before reaching this Court. The issues raised by the appeal concern important aspects of the YCJA and the CCRA and I have no doubt that the question of parole eligibility for young offenders serving their youth sentence in an adult facility is bound to arise again. Thus, given that the issues were fully and vigorously argued by both sides, a determination of these issues will make better use of scarce judicial resources and will also better serve the administration of justice.
[18] I therefore conclude that we should determine the issues now before us in this appeal.
Legislation
[19] It will be useful, at the outset, to reproduce the provisions of both the CCRA and the YCJA upon which depend the answers to the questions raised in this appeal:
A. Corrections and Conditional Release Act
A. Loi sur le système correctionnel et la mise en liberté sous condition
2. (1) "sentence" means a sentence of imprisonment and includes a sentence imposed by a foreign entity on a Canadian offender who has been transferred to Canada under the International Transfer of Offenders Act and a youth sentence imposed under the Youth Criminal Justice Act;
2. (1) « peine » ou « peine d’emprisonnement » S’entend notamment d’une peine spécifique imposée en vertu de la Loi sur le système de justice pénale pour les adolescents et d’une peine d’emprisonnement imposée par une entité étrangère à un Canadien qui a été transféré au Canada sous le régime de la Loi sur le transfèrement international des délinquants.
119. (1) Subject to section 746.1 of the Criminal Code, subsection 140.3(2) of the National Defence Act and subsection 15(2) of the Crimes Against Humanity and War Crimes Act, the portion of a sentence that must be served before an offender may be released on day parole is (…)
119. (1) Sous réserve de l’article 746.1 du Code criminel, du paragraphe 140.3(2) de la Loi sur la défense nationale et du paragraphe 15(2) de la Loi sur les crimes contre l’humanité et les crimes de guerre, le temps d’épreuve pour l’admissibilité à la semi-liberté est : (…)
(c) where the offender is serving a sentence of two years or more, other than a sentence referred to in paragraph (a) or (b), the greater of
(i) the portion ending six months before the date on which full parole may be granted, and
(ii) six months; or
(d) one half of the portion of the sentence that must be served before full parole may be granted, where the offender is serving a sentence of less than two years.
c) dans le cas du délinquant qui purge une peine d’emprisonnement égale ou supérieure à deux ans, à l’exclusion des peines visées aux alinéas a) et b), six mois ou, si elle est plus longue, la période qui se termine six mois avant la date d’admissibilité à la libération conditionnelle totale;
d) dans le cas du délinquant qui purge une peine inférieure à deux ans, la moitié de la peine à purger avant cette même date.
120. (1) Subject to sections 746.1 and 761 of the Criminal Code and to any order made under section 743.6 of that Act, to subsection 140.3(2) of the National Defence Act and to any order made under section 140.4 of that Act, and to subsection 15(2) of the Crimes Against Humanity and War Crimes Act, an offender is not eligible for full parole until the day on which the offender has served a period of ineligibility of the lesser of one third of the sentence and seven years.
…
128. (1) An offender who is released on parole, statutory release or unescorted temporary absence continues, while entitled to be at large, to serve the sentence until its expiration according to law.
120. (1) Sous réserve des articles 746.1 et 761 du Code criminel et de toute ordonnance rendue en vertu de l’article 743.6 de cette loi, du paragraphe 140.3(2) de la Loi sur la défense nationale et de toute ordonnance rendue en vertu de l’article 140.4 de cette loi, et du paragraphe 15(2) de la Loi sur les crimes contre l’humanité et les crimes de guerre, le temps d’épreuve pour l’admissibilité à la libération conditionnelle totale est d’un tiers de la peine à concurrence de sept ans.
…
128. (1) Le délinquant qui bénéficie d’une libération conditionnelle ou d’office ou d’une permission de sortir sans escorte continue, tant qu’il a le droit d’être en liberté, de purger sa peine d’emprisonnement jusqu’à l’expiration légale de celle-ci.
B. Youth Criminal Justice Act
B. Loi sur le système de justice pénale pour les adolescents
2. (1) "youth sentence" means a sentence imposed under section 42, 51 or 59 or any of sections 94 to 96 and includes a confirmation or a variation of that sentence.
2. (1) « peine spécifique » Toute peine visée aux articles 42, 51, 59 ou 94 à 96 ou confirmation ou modification d’une telle peine.
38. (1) The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.
38. (1) L’assujettissement de l’adolescent aux peines visées à l’article 42 (peines spécifiques) a pour objectif de faire répondre celui-ci de l’infraction qu’il a commise par l’imposition de sanctions justes assorties de perspectives positives favorisant sa réadaptation et sa réinsertion sociale, en vue de favoriser la protection durable du public.
42. (1) A youth justice court shall, before imposing a youth sentence, consider any recommendations submitted under section 41, any pre-sentence report, any representations made by the parties to the proceedings or their counsel or agents and by the parents of the young person, and any other relevant information before the court.
42. (1) Le tribunal pour adolescents tient compte, avant d’imposer une peine spécifique, des recommandations visées à l’article 41 et du rapport prédécisionnel qu’il aura exigés, des observations faites à l’instance par les parties, leurs représentants ou avocats et par les père et mère de l’adolescent et de tous éléments d’information pertinents qui lui ont été présentés.
(2) When a youth justice court finds a young person guilty of an offence and is imposing a youth sentence, the court shall, subject to this section, impose any one of the following sanctions or any number of them that are not inconsistent with each other and, if the offence is first degree murder or second degree murder within the meaning of section 231 of the Criminal Code, the court shall impose a sanction set out in paragraph (q) or subparagraph (r)(ii) or (iii) and may impose any other of the sanctions set out in this subsection that the court considers appropriate:
(…)
(2) Sous réserve des autres dispositions de la présente loi, dans le cas où il déclare un adolescent coupable d’une infraction et lui impose une peine spécifique, le tribunal lui impose l’une des sanctions ci-après en la combinant éventuellement avec une ou plusieurs autres compatibles entre elles; dans le cas où l’infraction est le meurtre au premier ou le meurtre au deuxième degré au sens de l’article 231 du Code criminel, le tribunal lui impose la sanction visée à l’alinéa q) ou aux sous-alinéas r)(ii) ou (iii) et, le cas échéant, toute autre sanction prévue au présent article qu’il estime indiquée :
(…)
(q) order the young person to serve a sentence not to exceed
[…]
(ii) in the case of second degree murder, seven years comprised of
(A) a committal to custody, to be served continuously, for a period that must not, subject to subsection 104(1) (continuation of custody), exceed four years from the date of committal, and
(B) a placement under conditional supervision to be served in the community in accordance with section 105;
q) l’imposition par ordonnance :
…
(ii) dans le cas d’un meurtre au deuxième degré, d’une peine maximale de sept ans consistant, d’une part, en une mesure de placement sous garde, exécutée de façon continue, pour une période maximale de quatre ans à compter de sa mise à exécution, sous réserve du paragraphe 104(1) (prolongation de la garde), et, d’autre part, en la mise en liberté sous condition au sein de la collectivité conformément à l’article 105;
89. (1) When a young person is twenty years old or older at the time the youth sentence is imposed on him or her under paragraph 42(2)(n), (o), (q) or (r), the young person shall, despite section 85, be committed to a provincial correctional facility for adults to serve the youth sentence.
…
(3) If a young person is serving a youth sentence in a provincial correctional facility for adults or a penitentiary under subsection (1) or (2), the Prisons and Reformatories Act and the Corrections and Conditional Release Act, and any other statute, regulation or rule applicable in respect of prisoners or offenders within the meaning of those Acts, statutes, regulations and rules, apply in respect of the young person except to the extent that they conflict with Part 6 (publication, records and information) of this Act, which Part continues to apply to the young person.
89. (1) L’adolescent âgé de vingt ans ou plus au moment où une peine spécifique lui est imposée en vertu des alinéas 42(2)n), o), q) ou r) doit, malgré l’article 85, être détenu dans un établissement correctionnel provincial pour adultes pour y purger sa peine.
…
(3) Les lois — notamment la Loi sur le système correctionnel et la mise en liberté sous condition et la Loi sur les prisons et les maisons de correction — , règlements et autres règles de droit régissant les prisonniers ou les délinquants au sens de ces lois, règlements ou autres règles de droit s’appliquent à l’adolescent qui purge sa peine dans un établissement correctionnel provincial pour adultes ou un pénitentier au titre des paragraphes (1) ou (2), dans la mesure où ils ne sont pas incompatibles avec la partie 6 (dossiers et confidentialité des renseignements) de la présente loi, qui continue de s’appliquer à l’adolescent.
91. (1) The provincial director of a province may, subject to any terms or conditions that he or she considers desirable, authorize, for a young person committed to a youth custody facility in the province further to an order under paragraph 76(1)(a) (placement when subject to adult sentence) or a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r),
(a) a reintegration leave from the youth custody facility for a period not exceeding thirty days if, in the opinion of the provincial director, it is necessary or desirable that the young person be absent, with or without escort, for medical, compassionate or humanitarian reasons or for the purpose of rehabilitating the young person or reintegrating the young person into the community; or
(b) that the young person be released from the youth custody facility on the days and during the hours that the provincial director specifies in order that the young person may
(i) attend school or any other educational or training institution,
(ii) obtain or continue employment or perform domestic or other duties required by the young person’s family,
(iii) participate in a program specified by the provincial director that, in the provincial director’s opinion, will enable the young person to better carry out employment or improve his or her education or training, or
(iv) attend an out-patient treatment program or other program that provides services that are suitable to addressing the young person’s needs.
104. (1) When a young person on whom a youth sentence under paragraph 42(2)(o), (q) or (r) has been imposed is held in custody and an application is made to the youth justice court by the Attorney General, within a reasonable time before the expiry of the custodial portion of the youth sentence, the provincial director of the province in which the young person is held in custody shall cause the young person to be brought before the youth justice court and the youth justice court may, after giving both parties and a parent of the young person an opportunity to be heard and if it is satisfied that there are reasonable grounds to believe that the young person is likely to commit an offence causing the death of or serious harm to another person before the expiry of the youth sentence the young person is then serving, order that the young person remain in custody for a period not exceeding the remainder of the youth sentence.
91. (1) Le directeur provincial d’une province peut, selon les modalités qu’il juge indiquées, autoriser à l’égard de l’adolescent placé dans un lieu de garde de la province en exécution d’une ordonnance rendue en application de l’alinéa 76(1)a) (placement en cas de peine applicable aux adultes) ou d’une peine spécifique imposée au titre des alinéas 42(2)n), o), q) ou r) :
a) ou bien un congé pour une période maximale de trente jours, si, à son avis, il est nécessaire ou souhaitable que l’adolescent s’absente, accompagné ou non, soit pour des raisons médicales, humanitaires ou de compassion, soit en vue de sa réadaptation ou de sa réinsertion sociale;
b) ou bien la mise en liberté durant les jours et les heures qu’il fixe, de manière que l’adolescent puisse, selon le cas :
(i) fréquenter l’école ou tout autre établissement d’enseignement ou de formation,
(ii) obtenir ou conserver un emploi ou effectuer, pour sa famille, des travaux ménagers ou autres,
(iii) participer à un programme qu’il indique et qui, à son avis, permettra à l’adolescent de mieux exercer les fonctions de son poste ou d’accroître ses connaissances ou ses compétences,
(iv) suivre un traitement externe ou prendre part à un autre type de programme offrant des services adaptés à ses besoins.
104. (1) Dans le cas où l’adolescent est tenu sous garde en vertu d’une peine spécifique imposée en application des alinéas 42(2)o), q) ou r) et où le procureur général présente une demande en ce sens au tribunal pour adolescents dans un délai raisonnable avant l’expiration de la période de garde, le directeur provincial de la province où l’adolescent est tenu sous garde doit le faire amener devant le tribunal; celui-ci, après avoir fourni aux parties et aux père ou mère de l’adolescent l’occasion de se faire entendre, peut, s’il est convaincu qu’il existe des motifs raisonnables de croire que l’adolescent commettra vraisemblablement, avant l’expiration de sa peine, une infraction causant la mort ou un dommage grave à autrui, ordonner son maintien sous garde pour une période n’excédant pas le reste de sa peine.
(2) If the hearing of an application under subsection (1) cannot be completed before the expiry of the custodial portion of the youth sentence, the court may order that the young person remain in custody until the determination of the application if the court is satisfied that the application was made in a reasonable time, having regard to all the circumstances, and that there are compelling reasons for keeping the young person in custody.
(2) S’il ne peut décider de la demande avant l’expiration de la période de garde, le tribunal peut, s’il est convaincu que la demande a été présentée dans un délai raisonnable, compte tenu de toutes les circonstances, et qu’il existe des motifs impérieux pour la prise de cette mesure, ordonner le maintien sous garde de l’adolescent jusqu’à l’aboutissement de la demande.
The Federal Court Decision
[20] Because I am of the view that Mosley J. (hereinafter “the Judge”) made no error which would allow us to intervene, I will set out at length the reasons which led him to conclude as he did.
[21] First, the Judge dealt with the standard of review. He referred to the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9, and to its more recent decision in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, and concluded that the applicable standard with regard to the interpretation of the CCRA and the YCJA was that of correctness. At paragraph 15 of his Reasons, he wrote as follows:
[15] Here, the Board interpreted its “home statute” (the CCRA) and a related statute (the YCJA) but the questions at issue in these proceedings have not arisen in the context of the Board’s usual administrative regime respecting the grant of parole to adult offenders. In the particular circumstances in which this application has been brought, I have no reason to believe that the Board has any greater degree of expertise than the Court in construing the interplay between the two statutes. The questions of law that arise may be considered to be of significant importance to the youth justice system and outside the Board’s expertise. Accordingly, I am satisfied that the Board’s decision does not require deference and that I must be concerned with whether the Board correctly interpreted the applicable legislation in its calculation of J.P.’s parole eligibility.
[22] The Judge then turned to the issue of whether the term “sentence”, found in the subsections 119(1), 120(1) and 128(1) of the CCRA, is a reference to the custodial portion only of a custody and supervision order under the YCJA or a reference to both the custody and supervision portions of the order for the purpose of calculating parole eligibility.
[23] The Judge began by reviewing the parties’ submissions. He then proceeded to review the purpose of the YCJA and its relevant provisions. He stated at paragraph 29 that the purpose of the statute was to render young persons accountable for offences through the imposition of just sanctions that have meaningful consequences for such persons and to promote their rehabilitation into society, thus, contributing to the protection of the public (see section 38 of the YCJA).
[24] The Judge then pointed out that in the case of a conviction for second degree murder, the youth justice court was bound to sentence the young person to a term not to exceed seven years, comprised of a committal to custody for a period not exceeding four years and a placement under conditional supervision to be served in the community (see subparagraph 42(2)(q)(ii) of the YCJA).
[25] The Judge indicated that while the seven-year term was fixed and that a supervision term was a mandatory component of the sentence, it was possible to vary the manner in which the custodial and non-custodial portions were to be served. In this regard, the Judge gave as an example subsection 104(1) of the YCJA, which provides that if the youth justice court is satisfied that there are reasonable grounds to believe that a young person will likely cause the death of or serious harm to another person before the expiry of his youth sentence, the court may order that the young person remain in custody for a period not to exceed the remainder of his youth sentence.
[26] The Judge also pointed out that because the respondent was over the age of 20 when he was sentenced, he was required to serve the custody portion of his youth sentence in a provincial correctional facility for adults (see. subsection 89(1) of the YCJA). This led him to observe that the CCRA, the Prisons and Reformatories Act, R.S., 1985, c. P-20 (the “PRA”), and any other statute, regulation or rule applicable to prisoners or offenders, within the meaning of those acts, statutes, regulations or rules, applied to young persons, except where there was a conflict with Part VI (Publication, Record and Information) of the YCJA (see subsection 89(3) of the YCJA).
[27] The Judge then turned to Part II of the CCRA, which governs the conditional release, supervision and long-term supervision of offenders serving their sentence in an adult facility. In particular, the Judge referred to sections 119 and 120 of the CCRA, which provide that an offender will be eligible for full parole after serving the lesser of 1/3 of his sentence or 7 years and that he will be eligible for day parole after having served the greater of a period ending six months before the date on which he is entitled to full parole and six months. This observation led him to opine that “[e]ligibility for day parole will necessarily depend upon eligibility for full parole” (see paragraph 34 of his Reasons).
[28] The Judge then turned to the main issue before him, which he formulated as follows at paragraph 35 of his Reasons:
[35] The issue at bar turns on the correct interpretation of “sentence” within the meaning of these provisions. The applicant’s position is that only the 22-month custodial portion of his sentence can be considered “the sentence” for the purpose of calculating parole eligibility. The respondent argues that parole eligibility is based on an offender’s total sentence, which in the applicant’s case is 58 months.
[29] He began his treatment of the issue by stating that, at first glance, the meaning of the word “sentence” found in the section 2 definition of the CCRA appeared to refer to both the custodial and supervisory components of the youth sentence imposed under the YCJA, which sentence included the sentence imposed on the respondent under section 42 thereof.
[30] However, the Judge undertook a contextual interpretation of the relevant provisions, as required by the Supreme Court’s decision in Rizzo and Rizzo Shoes Ltd. (Re.), [1988] 1 S.C.R. 27, wherein the Supreme Court adopted the point of view enunciated by Professor Elmer A. Driedger in his The Construction of Statutes (Toronto: Butterworth, 1974) (the “The Construction of Statutes”), at 67, where he said:
The words of an Act are to 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.
[31] In conducting a contextual interpretation, the Judge referred to paragraph 83(2)(e) of the YCJA, which provides that young persons, when treated as adults, are not to be disadvantaged “with respect to their eligibility for and conditions of release”. The Judge then observed that the respondent, having been placed in an adult facility, was not to be disadvantaged “in the calculation of his sentence to determine his eligibility for release” (paragraph 42 of his Reasons).
[32] The Judge then opined that the meaning of the word “sentence”, found in sections 119 and 120 of the CCRA, could be inferred from a conceptual and purposive interpretation of the parole scheme found in the CCRA. He indicated that parole was a discretionary form of conditional release whereby offenders were allowed to serve the balance of their sentence outside of a correctional facility, under supervision and specific conditions, adding that parole therefore could not “attach to a sanction-like portion thereof that is already ordered to be served in the community, such as the conditional supervision portion of a sentence under subparagraph 42(2)(q)(ii) of the YCJA” (paragraph 43 of his Reasons).
[33] The Judge then referred to the definition of the word “sentence” found at subsection 2(1) of the CCRA, which, for ease of reference, I again reproduce:
2. (1) "sentence" means a sentence of imprisonment and includes a sentence imposed by a foreign entity on a Canadian offender who has been transferred to Canada under the International Transfer of Offenders Act and a youth sentence imposed under the Youth Criminal Justice Act;
2. (1) « peine » ou « peine d’emprisonnement » S’entend notamment d’une peine spécifique imposée en vertu de la Loi sur le système de justice pénale pour les adolescents et d’une peine d’emprisonnement imposée par une entité étrangère à un Canadien qui a été transféré au Canada sous le régime de la Loi sur le transfèrement international des délinquants.
[34] The Judge pointed out that the definition used the verbs “means” and “includes”, which led him to refer with approval to Hansen J.’s decision in Hrushka c. Canada (Minister of Foreign Affairs), 2009 FC 69, where she wrote at paragraph at 16 of her Reasons:
Second, the Respondent’s argument runs contrary to the use and purpose of statutory definitions and recognized drafting conventions. As stated in Sullivan and Drieger on the Construction of Statutes, [Ruth Sullivan, Sullivan and Drieger on the Construction of Statutes (Vancouver: Butterworths, 2002), p. 51.] there are two kinds of statutory definitions, exhaustive and non-exhaustive. Exhaustive definitions are normally introduced with the term “means” and serve the following purposes: “to clarify a vague or ambiguous term; to narrow the scope of a word or expression; to ensure that the scope of a word or expression is not narrowed; and to create an abbreviation or other concise form of reference to a lengthy expression.” Non-exhaustive definitions are normally introduced by the word “includes” and serve “to expand the ordinary meaning of a word or expression; to deal with borderline applications; and to illustrate the application of a word or expression by setting examples.” Thus, it can be seen that a statutory definition does not typically have substantive content. Indeed, the inclusion of substantive content in a definition is viewed as a drafting error. As stated by Francis Bennion in Statutory Interpretation:
Definitions with substantive effect It is a drafting error (less frequent now than formerly) to incorporate a substantive enactment in a definition. A definition is not expected to have operative effect as an independent enactment. If it is worded in that way, the courts will tend to construe it restrictively and confine it to the proper function of a definition.
[Emphasis added]
[35] Adopting Hansen J.’s point of view led the Judge to opine that the expression “means a sentence of imprisonment” narrowed the scope of the term “sentence” to one of incarceration (paragraph 47 of his Reasons). As a result, it was his view that the only portion of the youth sentence under the YCJA included in the “sentence” under the CCRA was the custodial portion thereof. At paragraph 49 of his Reasons, the Judge wrote as follows:
[49] The term “youth sentence” as defined under section 2 of the YCJA applies to a broad range of possible sentence dispositions that may be imposed. Youth sentences which involve custody will have a non-custodial portion. The inclusion of the term “youth sentence” in the definition of “sentence” in the CCRA is intended solely to ensure that the conditional release provisions of the CCRA are available to offenders serving the custodial portion of their youth sentences in adult facilities. Thus the definition has to read as referring to the custodial portion and not to the community supervision portion.
[36] Finally, the Judge turned to section 742.1 of the Criminal Code and noted that according to that section, “conditional sentence of imprisonment” was a “sentence of imprisonment” which an offender served in the community in lieu of in an institution. He then pointed out that in R. v. Proulx, [2000] 1 S.C.R. 61, the Supreme Court of Canada opined that parole did not apply to a conditional sentence of imprisonment by reason of the fact that under such a sentence, an offender was not incarcerated and therefore there was no need for reintegration into society [see paragraph 43 of R. v. Proulx, supra]. This led the Judge to state that, in the same way, “parole cannot be granted to … a young offender who has already been conditionally released.” (see paragraph 50 of the Judge’s Reasons).
[37] The Judge then further remarked that the supervision portion of the youth sentence under the YCJA was “an alternative to detention and is intended to be served in the community”. Recognizing that a young person’s period of custody could be extended under section 98 of the YCJA and that the young person could be remanded into custody under section 102 of the YCJA for breach of conditions, the Judge indicated that these were “exceptional procedures” (see paragraph 51 of the Judge’s Reasons), which did not detract from the principle that the young person’s reintegration into the community was a fundamental element of a custodial sentence under the YCJA.
[38] The Judge then turned to the second issue before him, namely, does the Board’s authority over a young person serving a youth sentence in an adult facility terminate upon the expiry of the young person’s period of custody?
[39] The Judge began by noting that the respondent was seeking a declaration that the Board’s authority over him terminated at the end of his 22-month period of custody. He also took note of the respondent’s submission that if full parole was granted to the respondent by the Board and that the respondent remained on full parole at the end of his period of custody, the Board would continue to exercise jurisdiction over him for the balance of his youth sentence, i.e. for the remainder of the 58-month sentence.
[40] The Judge then pointed out that by reason of subsection 89(3) of the YCJA, the CCRA and the PRA applied to a young person who was serving a youth sentence in an adult facility, adding that it was unclear whether youth justice principles ceased to apply. In support of that view, he referred to the decision of Duncan J. of the Ontario Court of Justice in R. v. C.K., 2008 ONCJ 236, (2008), 233 C.C.C. (3d) 194 (Ont. C.J.), who, at paragraph 18 of his Reasons, made the following remarks:
An offender serving a youth sentence who enters or is transferred to an adult facility enters a legal no man’s land. The YOA [Youth Offenders Act, R.S. 1985, c. &-1, repealed in 2002 and replaced by the YCJA ] provided for discretionary transfer at the age of 18 but made it clear that “the provisions of this Act shall continue to apply in respect of that person” (s. 24.5 of the YOA). The YCJA contains no such provision. Nor does it specifically state the opposite – that the youth statute or any parts of the sections of it cease to apply. As a consequence it is not clear whether the Act or principles of youth justice apply or whether a transferred youth is even entitled to a review.
[Emphasis added]
[41] The issue before Duncan in R. v. C.K., supra, was whether the review provisions set out at section 94 of the YCJA applied to a young person serving a sentence in an adult facility. Mr. Justice Duncan concluded that they applied.
[42] After reviewing Duncan J.’s Reasons, the Judge pointed out at paragraph 61 of his Reasons that Mr. Justice Duncan had concluded that the principles found in the YCJA continued to apply to young persons who were serving the custodial portion of their youth sentence in an adult facility, adding that in Mr. Justice Duncan’s view, the adult facility was bound to accommodate the young person in a way that complied with the principles of youth criminal justice.
[43] The Judge then turned to the facts before him and made the following statement at paragraphs 62 and 63 of his Reasons:
[62] In the case at bar, the Board’s initial reasons for refusing day parole to the applicant state that “if released on his eligibility date, he would be subject to the terms and conditions of his Full Parole through to his warrant expiry date 2013/01/06”. Such a statement has significant implications. Most importantly, it means that the terms and conditions of parole set by the Board would apply for the remainder of the applicant’s youth sentence. It is not clear how this would be reconciled with the supervision principles under the YCJA and the conditions imposed by the sentencing judge. It is also unclear how the Board, which is accustomed to dealing with adult offenders, would accommodate YCJA principles in supervising this offender.
[63] An aspect of the legislative scheme that supports the respondent’s position that Parliament intended that the Board would have jurisdiction until the end of the offender’s sentence, is that, as discussed above, the custodial portion of the sentence could in exceptional circumstances be extended to “warrant expiry”. In that situation, the offender would continue to be detained (or returned to custody following a review in the case of a breach of his conditions), in an adult correctional facility and would remain within the scope of the CCRA and the Board’s jurisdiction.
[44] This led the Judge to conclude that unless a decision was made to continue a young person’s custody period or to return him to custody for the balance of his youth sentence, the Board’s jurisdiction over the young person terminated at the end of the custodial period because the young person could no longer be detained under the terms of his youth sentence. The Judge opined that such a scenario did not lead to “a jurisdictional void” because the young person would necessarily remain under the supervision of the provincial di