[2011] 4 F.C.R. 29
A-202-09
2010 FCA 90
Attorney General of Canada (Appellant)
v.
J.P. (Respondent)
Indexed as: J.P. v. Canada (Attorney General)
Federal Court of Appeal, Blais C.J., Nadon and Evans JJ.A.—Vancouver, October 28, 2009; Ottawa, April 7, 2010.
Parole — Appeal from Federal Court decision allowing judicial review challenging National Parole Board’s calculation of respondent’s parole eligibility dates — Respondent 14 when convicted of second degree murder — At 22, sentenced to 22 months custody, 36 months community supervision pursuant to Youth Criminal Justice Act (YCJA), s. 42(2)(q)(ii) — As respondent over 20 when sentenced, committed to provincial correctional facility for adults pursuant to YCJA, s. 89(1) — National Parole Board thus asserting jurisdiction over respondent, concluding that for purpose of determining eligibility for parole, respondent serving 58-month sentence — Federal Court determining that only 22-month custodial portion of respondent’s sentence to be included by Board for purpose of calculating eligibility for parole — Federal Court correctly interpreting word “sentence”, as defined in Corrections and Conditional Release Act (CCRA), s. 2(1) — Reference to “youth sentence” in CCRA, s. 2(1) directed to portion of youth sentence to which YCJA, ss. 89(1), 89(3) applying (i.e. period of custody) — Federal Court not erring regarding Board’s jurisdiction — Once custodial portion of youth sentence served, Board no longer having jurisdiction; youth court, provincial director retaining exclusive jurisdiction over young person — Federal Court correctly holding Board would retain jurisdiction if respondent’s custody continued until end of conditional supervision portion of youth sentence or if youth returned to custody for remainder of youth sentence — Appeal dismissed.
Construction of Statutes — Respondent sentenced to 22 months custody, 36 months community supervision pursuant to Youth Criminal Justice Act (YCJA), s. 42(2)(q)(ii) — National Parole Board concluding respondent serving 58-month sentence, parole eligibility to be determined pursuant to Corrections and Conditional Release Act (CCRA), s. 119(1)(c) — Whether term “sentence” for purpose of calculating parole eligibility under CCRA including only portion of sentence imposed under YCJA, s. 42(2)(q)(ii) — French version of CCRA, s. 119(1)(c) making clear that “sentence” constituting sentence of imprisonment — Federal Court correctly holding that words “means a sentence of imprisonment” found in CCRA, s. 2(1) narrowing scope of word “sentence” to one of incarceration.
This was an appeal from a Federal Court decision allowing the respondent’s application for judicial review challenging the National Parole Board’s calculation of his parole eligibility dates. The respondent murdered his mother when he was 14 and was convicted of second-degree murder. Pursuant to subparagraph 42(2)(q)(ii) of the Youth Criminal Justice Act (YCJA), he was sentenced to 22 months of custody and 36 months of community supervision. Since the respondent was 22 at the time of sentencing, he was committed to a provincial correctional facility for adults to serve his sentence. Because of his placement in a correctional facility for adults, the Board asserted jurisdiction over him. The Board was of the view that the respondent was serving a 58-month sentence and therefore, a sentence of over two years for the purpose of subsection 119(1) of the Corrections and Conditional Release Act (CCRA). It determined that the respondent’s parole eligibility was to be made in accordance with paragraph 119(1)(c). The respondent disagreed, finding that his sentence was less than two years (i.e. 22 months of custody) and that the calculation of his parole eligibility was to be made in accordance with paragraph 119(1)(d). On judicial review, the Federal Court determined that for the purpose of calculating the respondent’s eligibility for day and full parole, only the 22-month custodial portion of the respondent’s sentence was to be included by the Board, not the conditional supervision portion.
The issues were 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; whether the Board ceases to have jurisdiction over an individual transferred to an adult correctional facility pursuant to the YCJA once the custodial portion of the sentence imposed under subparagraph 42(2)(q)(ii) ends; and 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.
Held, the appeal should be dismissed.
The Federal Court correctly interpreted the word “sentence”. The word “sentence”, defined in subsection 2(1) of the CCRA, means a sentence of imprisonment and includes a youth sentence imposed under the YCJA. Parliament decided that young persons, aged 20 or older, should serve their period of custody in an adult facility (subsection 89(1) of the YCJA) and that while detained therein, the CCRA and the Prison Reformatories Act (PRA) would apply to them. The period of custody referred to in subsection 89(1) of the YCJA is the only period to which, pursuant to subsection 89(3) thereof, the CCRA and the PRA are directed by Parliament to apply. Thus, the parole scheme of the CCRA can only be concerned with a young person’s period of custody to the exclusion of his period of supervision. When subsection 89(3) of the YCJA and the definition of “sentence” found at subsection 2(1) of the CCRA are read together, a youth sentence within the meaning of the definition can only be the custody period thereof. Hence, the reference to “youth sentence” in subsection 2(1) of the CCRA can only be directed to that portion of the youth sentence to which subsections 89(1) and 89(3) of the YCJA find application (i.e. a young person’s period of custody).
The French version of paragraph 119(1)(c) of the CCRA uses the expression “dans le cas du délinquent qui purge une peine d’emprisonnement” to translate the words “where the offender is serving a sentence”. The meaning in the French version is the one which is clearly envisaged by the definition of “sentence” in subsection 2(1) of the CCRA when it makes clear that a “sentence” is a sentence of imprisonment. The Federal Court was therefore correct in holding that the words “means a sentence of imprisonment” found in subsection 2(1) of the CCRA narrowed the scope of the word “sentence” to one of incarceration. This was the only conclusion possible, taking into account the scheme of the Act, the object of the Act and Parliament’s intention.
The Federal Court did not make any reviewable error regarding the Board’s jurisdiction. The argument that the Board should continue to exercise jurisdiction over the respondent, even after the termination of his period of custody, conflicted with the principles of the YCJA. Section 89 of the YCJA transfers the custodial portion of the youth sentence only to adult correctional authorities or to the Board if parole is granted to the young person. Therefore, once the custodial portion of the sentence has been served or has come to an end, the youth court and the provincial director retain their exclusive jurisdiction over the young person.
Finally, the Federal Court was also correct in holding that the Board would retain jurisdiction should the respondent’s custody be continued until the end of the conditional supervision portion of his youth sentence or should he be returned to custody for the remainder of his youth sentence by order of the youth justice court. In such a scenario, the respondent would necessarily be committed, pursuant to subsection 89(1) of the YCJA, to a provincial correctional facility for adults; thus, pursuant to subsection 89(3), the CCRA and the PRA would apply. Therefore, the Board would have jurisdiction over the respondent.
STATUTES AND REGULATIONS CITED
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 2(1) “sentence” (as enacted by S.C. 1995, c. 42, s. 1; 2004, c. 21, s. 39), “custodial portion”, 119 (as am. by S.C. 1995, c. 22, ss. 13, 18; 1997, c. 17, s. 20; 2000, c. 24, s. 37), 120 (as am. by S.C. 1995, c. 22, s. 13, c. 42, s. 34; 2000, c. 24, s. 38), 128(1) (as am. by S.C. 1995, c. 42, ss. 69(E), 71(F)).
Criminal Code, R.S.C., 1985, c. C-46, s. 742.1 (as enacted by S.C. 1992, c. 11, s. 16; 2007, c. 12, s. 1).
Prisons and Reformatories Act, R.S.C., 1985, c. P-20, ss. 6(5) (as am. by S.C. 1995, c. 42, s. 82), (7.2) (as enacted by S.C. 2002, c. 1, s. 197), (7.3) (as enacted idem).
Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 2(1) “youth sentence”, 3(1)(b), 38, 42, 83(2), 89, 91(1), 94, 98, 102, 104, 105, 106, 107, 108, 109.
CASES CITED
considered:
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, 57 D.L.R. (4th) 231, [1989] 3 W.W.R. 97; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418, 154 D.L.R. (4th) 193; Hrushka v. Canada (Minister of Foreign Affairs), 2009 FC 69, 340 F.T.R. 81; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, 182 D.L.R. (4th) 1; R. v. K.(C.), 2008 ONCJ 236 (CanLII), 233 C.C.C. (3d) 194; R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, 237 N.S.R. (2d) 204, 259 D.L.R. (4th) 1.
referred to:
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, 304 D.L.R. (4th) 1, 82 Admin. L.R. (4th) 1.
APPEAL from a Federal Court decision (2009 FC 402, [2010] 3 F.C.R. 3, 252 C.C.C. (3d) 127, 344 F.T.R. 235) allowing the respondent’s application for judicial review challenging the National Parole Board’s calculation of his parole eligibility dates. Appeal dismissed.
APPEARANCES
Curtis S. Workun for appellant.
Garth Barriere and Christopher P. Hardcastle for respondent.
SOLICITORS OF RECORD
Deputy Attorney General of Canada for appellant.
Garth Barriere, Vancouver, for respondent.
The following are the reasons for judgment rendered in English by
[1] Nadon J.A.: On April 24, 2009, Mosley J. of the Federal Court, in decision 2009 FC 402, [2010] 3 F.C.R. 3, 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) [as am. by S.C. 2000, c. 24, s. 37], 120(1) [as am. idem, s. 38] and 128(1) [as am. by S.C. 1995, c. 42, ss. 69(E), 71(F)] 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 page 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 page 362 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
| Definitions |
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; |
| ... |
|
| Time when eligible for day parole |
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 ... (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. ... |
| Time when eligible for full parole |
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. ... |
| Continuation of sentence |
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. [Emphasis added.] |
B. Youth Criminal Justice Act
| Definitions |
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. ... |
| Purpose |
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. ... |
| Considerations as to youth sentence |
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. |
| Youth sentence |
(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: ... (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; ... |
|
| Exception if young person is twenty years old or older |
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. ... |
| Provisions to apply |
(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. ... |
| Reintegration leave |
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. ... |
| Continuation of custody |
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. |
| Continuation of custody |
(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. [Emphasis added.] |
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, [2008] 1 S.C.R. 190, and to its more recent decision in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 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:
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 28 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.C., 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 6 [ss. 110–129] (publication, record and information) of the YCJA (see subsection 89(3) of the YCJA).
[27] The Judge then turned to Part II [ss. 99–156] 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 [as am. by S.C. 1995, c. 22, ss. 13, 18; 1997, c. 17, s. 20; 2000, c. 24, s. 37] and 120 [as am. by S.C. 1995, c. 22, s. 13; c. 42, s. 34; 2000, c. 24, s. 38] 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 seven 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 33 of his reasons).
[28] The Judge then turned to the main issue before him, which he formulated as follows at paragraph 34 of his reasons:
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 subsection 2(1) [as enacted by S.C. 1995, c. 42, s. 1; 2004, c. 21, s. 39] 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 & Rizzo Shoes Ltd. (Re), [1998] 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), at page 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 41 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 or a 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 42 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:
| Definitions |
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; [Emphasis added.] |
[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 v. Canada (Minister of Foreign Affairs), 2009 FC 69, 340 F.T.R. 81, where she wrote at paragraph 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” [emphasis in original] narrowed the scope of the term “sentence” to one of incarceration (paragraph 46 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 48 of his reasons, the Judge wrote as follows:
The term “youth sentence” as defined under subsection 2(1) 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 [as enacted by S.C. 1992, c. 11, s. 16; 2007, c. 12, s. 1] of the Criminal Code [R.S.C., 1985, c. C-46] 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 SCC 5, [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, above). 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 49 of the Judge’s reasons).
[37] The Judge then further remarked [at paragraph 50] 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 50 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. K.(C.), 2008 ONCJ 236 (CanLII), 233 C.C.C. (3d) 194, 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.C., 1985, c. Y-1, repealed in 2002 and replaced by the YCJA] provided for discretionary transfer at age 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. K.(C.), above, 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 60 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 61 and 62 of his reasons:
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.
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 director and the youth court which had sentenced him.
Analysis
[45] At the outset, a few words should be said about the standard of review. Although neither party made any submissions in their memoranda of fact and law regarding the standard of review, it is implicit in their submissions that they do not dispute the Judge’s conclusion that the applicable standard is that of correctness. Because I am satisfied that there is only one reasonable interpretation of the statutes at issue, I need not address the question of whether deference to the Board was required in the present matter.
[46] The appellant makes a number of submissions as to why we should intervene. First, he takes issue with paragraph 42 of the Judge’s reasons, where the Judge states that parole cannot apply “to a sanction or a portion thereof that is already ordered to be served in the community”. To do justice to the appellant’s arguments, I will quote in full paragraphs 46 and 47 of his memorandum of fact and law:
To the extent that the lower court in making that statement means that parole is unnecessary, as an avenue of recourse, while an offender is otherwise on release pursuant to statute or court order during his criminal sentence, the Appellant agrees.
If however, as it appears from its jurisdictional findings, the lower court also means that parole cannot exist or an offender cannot be on parole during the period he would otherwise be entitled by statute or court order to be on release during his sentence of imprisonment, the Appellant says the lower court is in error. Clearly, an individual who is granted parole and remains on parole as of the date he would otherwise be entitled to release by statute or court order, remains on parole until revoked or until the expiration of his sentence.
[47] These remarks lead the appellant to argue that the Judge’s inference that the supervisory portion of the respondent’s youth sentence is excluded from the calculation of his parole eligibility is also an error on his part. In the appellant’s submission, the above inference is not in accordance with principles of statutory interpretation in that it fails to distinguish between entitlement to release and a discretionary grant of release (parole) and it fails to give effect to Parliament’s intention that release or eligibility for release be both calculated by reference to the entire length of the criminal sentence, whether the offender be an adult or a young person.
[48] The appellant further argues that the Judge’s error results from his reluctance to recognize that the “sanction” imposed under subparagraph 42(2)(q)(ii) of the YCJA constitutes a “single sanction” and not separate sanctions. In other words, the Judge treated the sentence imposed on the respondent as two sentences rather than one.
[49] The appellant’s next submission challenges the Judge’s reliance on Hansen J.’s decision in Hrushka, above, where she dealt with the meaning of the words “means” and “includes”, words found in the CCRA’s subsection 2(1) definition of the word “sentence”. The Judge concluded, as I have already indicated, that the word “sentence” meant “sentence of imprisonment” and, as a result, that the youth sentence imposed under the YCJA meant the custodial portion thereof only.
[50] In the appellant’s view, the Judge’s interpretation of the word “sentence”, found in subsection 2(1) of the CCRA, constitutes an unwarranted “reading down” of the legislation. The Judge’s interpretation of the provision does not accord with the principle of statutory interpretation that the words are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act and the intention of Parliament.
[51] At paragraphs 78 to 81 of his memorandum of fact and law, the appellant summarizes his position in the following terms:
The definition of “sentence” by virtue of s. 99 of the CCRA has the same meaning as that attributed to the term under s. 2 of the CCRA. The applicable definition is:
“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.
The definition of “sentence” is clear and unambiguous. Sentence means sentence and includes a “youth sentence” imposed pursuant to the terms of the YCJA. In turn, “youth sentence”, in the context of s. 2 of the CCRA, includes and is, in fact, limited to a sentence imposed under s. 42(2)(n), (o), (q) or (r) of the YCJA.
Section 42(2)(q) of the YCJA does not parse a sentence comprised of a period of supervision and a period of custody into a sentence of custody and a sentence of supervision.
The provisions of the YCJA cited above lead to no other conclusion that the period of custody and the period of conditional supervision in the community constitute a single sanction meeting the definition of “sentence” prescribed by Parliament for the purpose of calculating parole eligibility.
[52] The appellant also submits that the Judge erred in determining the Board’s jurisdiction over the respondent. He reiterates the argument which he made before the Judge with respect to the Board’s jurisdiction. If the Board grants the respondent full parole and he therefore remains on full parole at the time the custodial portion of his sentence terminates, the Board continues to exercise jurisdiction over him for the remainder of his youth sentence, i.e. the 26 months of supervision. For this submission, the appellant relies, inter alia, on subsection 89(3) of the YCJA which provides for the application of the CCRA and the PRA to young offenders transferred to adult facilities.
[53] As a result, the appellant says that the Judge fell into error in concluding that the Board’s jurisdiction expired when the applicant was “no longer required to be detained under the terms of the custodial portion of his sentence” (paragraph 63 of the Judge’s reasons).
[54] I now turn to the issue of interpretation. The parties submit, as they must, that the meaning of the word “sentence” must be determined by reading the word “in [its] entire context and in [its] grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament” (see The Construction of Statutes, above, at page 67). I therefore turn to that task.
[55] To begin with, it is important to note that the definition of “sentence” found in subsection 2(1) of the CCRA says that it “means a sentence of imprisonment and includes ... a youth sentence imposed under the Youth Criminal Justice Act”. The appellant argues that the reference to a youth sentence imposed under the YCJA can mean nothing but the entire sentence, i.e. the custodial and supervision components of the youth sentence. The respondent, on the other hand, says that such reference can only be to the custodial portion of the youth sentence.
[56] I now turn to context. More particularly, I turn to the scheme and object of both the YCJA and the CCRA and to Parliament’s intention.
[57] The difficulty which arises in this case stems from the fact that Parliament decided that young persons, aged 20 or older, should serve their period of custody in an adult facility (subsection 89(1) of the YCJA) and that while detained therein, the CCRA and the PRA will apply to them.
[58] Thus, for example, the possibility of reintegration leave or release during the period of custody provided by subsection 91(1) of the YCJA is not available to young persons committed to an adult facility, as the provincial director’s authority to grant to young persons either reintegration leave or release is limited to young persons detained in a youth custody facility. However, through paragraph 83(2)(e) of the YCJA, Parliament also decided that young persons committed to an adult facility were not to be disadvantaged “with respect to their eligibility for and conditions of release.”
[59] This leads me to observe that although Parliament could have achieved the purpose set out at subsection 83(2) by granting the provincial director authority over young persons committed to an adult facility, it chose not to do so. Rather, it directed that the existing scheme for release from custody, found in the CCRA and the PRA, would be available to such young persons.
[60] The respondent submits, and I agree with him, that by choosing this course of action, Parliament exempted young persons from a major disadvantage that would have resulted by reason of their committal to an adult facility. Thus, prison and penitentiary authorities are not obliged to apply a different legislative scheme to young persons within their jurisdiction and the difficulty inherent in the application of different legislative schemes for release from custody for young persons and adult offenders is avoided.
[61] I note that the provincial director’s authority in regard to reintegration leave and release during the course of a young person’s custodial period does not apply to a young person’s period of supervision, in the same way that the parole scheme only applies to an adult offender’s committal to custody.
[62] Subsection 89(1) of the YCJA provides that a young person, aged 20 or older, must be sent to an adult facility to serve his period of custody. It is therefore my view that that period is the only period to which, pursuant to subsection 89(3) of the YCJA, the CCRA and the PRA are directed by Parliament to apply. Thus, it necessarily follows that the parole scheme of the CCRA can only be concerned with a young person’s period of custody to the exclusion of his period of supervision.
[63] Consequently, although I found the appellant’s argument regarding the unity of the youth sentence under the YCJA initially attractive, I do not see any merit in it given the wording of the CCRA and the YCJA. Even if it is true that a sentence imposed under subparagraph 42(2)(q)(iii) of the YCJA is a “single sanction”, only the custody portion thereof constitutes a “sentence of imprisonment”. I also do not see any merit in the distinction which the appellant seeks to make between entitlement to release and the actual grant of release, i.e. parole. This argument is simply another way of putting forward the proposition that the youth sentence under the YCJA is one sentence only and not a sentence broken into two components.
[64] I note that subsection 2(1) of the YCJA defines the expression “custodial portion” of a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r) as “the period of time, or the portion of the young person’s youth sentence, that must be served in custody before he or she begins to serve the remainder under supervision in the community”.
[65] Thus, when subsection 89(3) of the YCJA and the definition of “sentence” found at subsection 2(1) of the CCRA, which incorporates a youth sentence within its meaning, are read together, it is my opinion that a youth sentence within the meaning of the definition can only be the custody period thereof. Hence, the reference to “youth sentence” in subsection 2(1) of the CCRA can only be directed to that portion of the youth sentence to which subsections 89(1) and 89(3) of the YCJA find application, i.e. a young person’s period of custody.
[66] It is of interest to note that the French version of paragraph 119(1)(c) of the CCRA uses the expression “dans le cas du délinquent qui purge une peine d’emprisonnement” to translate the words “where the offender is serving a sentence”. This meaning (in the French version) is the one which is clearly envisaged by the definition of “sentence” in subsection 2(1) of the CCRA when it makes clear that a “sentence” is a sentence of imprisonment.
[67] It is therefore my view that the Judge was correct in holding that the words “means a sentence of imprisonment” found in subsection 2(1) of the CCRA narrowed the scope of the word “sentence” to one of incarceration. I am satisfied that that is the only conclusion possible, taking into account the scheme of the Act, the object of the Act and Parliament’s intention.
[68] The conclusion which the Judge reached, with which I agree, is also consistent with the scheme and object of parole, in that there can be no doubt that the parole scheme finds application only insofar as an offender is committed to custody.
[69] In R. v. Proulx, above, the Supreme Court held that the parole scheme did not apply to an offender serving a conditional sentence in the community. In its view, that approach was inconsistent with the scheme and object of parole because the offender, at that point in time, was not incarcerated and thus did not need to be reintegrated into society. At paragraphs 42 and 43, Chief Justice Lamer wrote as follows:
Moreover, the conditional sentence is not subject to reduction through parole. This would seem to follow from s. 112(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20, which gives the provincial parole board jurisdiction in respect of the parole of offenders “serving sentences of imprisonment in provincial correctional facilities” (R. v. Wismayer (1997), 115 C.C.C. (3d) 18 (Ont. C.A.), at p. 33).
I would add that the fact that a conditional sentence cannot be reduced through parole does not in itself lead to the conclusion that as a general matter a conditional sentence is as onerous as or even more onerous than a jail term of equivalent duration. There is no parole simply because the offender is never actually incarcerated and he or she does not need to be reintegrated into society. But even when an offender is released from custody on parole, the original sentence continues in force. As I stated in M. (C.A.), supra, at para. 62:
In short, the history, structure and existing practice of the conditional release system collectively indicate that a grant of parole represents a change in the conditions under which a judicial sentence must be served, rather than a reduction of the judicial sentence itself... . But even though the conditions of incarceration are subject to change through a grant of parole to the offender’s benefit, the offender’s sentence continues in full effect. The offender remains under the strict control of the parole system, and the offender’s liberty remains significantly curtailed for the full duration of the offender’s numerical or life sentence. [Emphasis in original.]
The parolee has to serve the final portion of his or her sentence under conditions similar to those that can be imposed under a conditional sentence, perhaps even under stricter conditions, as the parolee can be assigned to a “community-based residential facility”: see s. 133 of the Corrections and Conditional Release Act and s. 161 of the Corrections and Conditional Release Regulations, SOR/92-620. [Emphasis added.]
[70] Thus, if the parole scheme does not apply to an adult conditional sentence served in the community, which section 742.1 of the Criminal Code defines as a “sentence of imprisonment”, it must follow that the supervisory period of a young person’s youth sentence, which clearly is not a sentence of imprisonment, cannot be subject to the parole scheme.
[71] In concluding on this point, I would like to briefly address the submissions made by the appellant regarding the consequences of the Judge’s decision. The appellant says that the Judge’s decision creates a distinction between the youth criminal justice system and the adult criminal justice system that was neither intended by Parliament, nor warranted. The appellant also says that by reason of the Judge’s decision, the period that individuals in situations similar to those of the respondent must wait before being considered for parole will be reduced and that the decision creates an incentive for young persons to be transferred to adult correctional facilities, contrary to the principles of the youth criminal justice system.
[72] First, it is clear that it is not the Judge’s decision that creates a distinction between the youth and the adult criminal justice systems. If a distinction exists, it is the result of the existing legislation, the YCJA, which, inter alia, provides at paragraph 3(1)(b) that one of the guiding principles of the Act is that “the criminal justice system for young persons must be separate from that of adults” and that it must emphasize, inter alia, rehabilitation and reintegration. In that regard, the words of Mr. Justice Fish of the Supreme Court of Canada in R. v. R.C., 2005 SCC 61, [2005] 3 S.C.R. 99, at paragraph 41, are apposite:
In creating a separate criminal justice system for young persons, Parliament has recognized the heightened vulnerability and reduced maturity of young persons. In keeping with its international obligations, Parliament has sought as well to extend to young offenders enhanced procedural protections, and to interfere with their personal freedom and privacy as little as possible: see the United Nations Convention on the Rights of the Child, Can. T.S. 1992 No. 3, incorporated by reference in the YCJA.
[73] Second, the appellant’s suggestion that individuals such as the respondent will spend less time in detention before being paroled appears to be premised on a comparison of young persons detained in an adult facility to other inmates (adult) in that same facility. The fact of the matter is that young persons do not cease to be “a young person” within the meaning of the YCJA, because they are being held in an adult facility. They are still young persons serving a youth sentence within the meaning of subsection 2(1) of the YCJA.
[74] The better comparison is one between young persons detained in an adult facility and young persons who are being held in a youth facility. In keeping with paragraph 83(2)(e) of the YCJA, the former should not be disadvantaged on the basis of the location where they are being held in custody.
[75] The appellant also suggests that the Judge’s decision creates an incentive for young persons to be transferred to an adult facility. In that regard, the appellant says that a youth held in a youth facility is only eligible for review after 12 months, pursuant to section 94 of the YCJA, while a young person, such as the respondent, would be eligible for parole after only seven months. There does not appear to be any basis for the appellant’s assertion. The application of section 94 of the YCJA is not limited to young persons held in a youth facility. Rather, it applies to all young persons, including those committed to custody in an adult facility. Consequently, the respondent was entitled to and did receive a review under section 94 of the YCJA. Moreover, as I have already indicated, only young persons held in youth facilities get the benefit of subsection 91(1) of the YCJA which provides for reintegration leave and various other forms of leave which can be authorized by the provincial director.
[76] I have not been persuaded that the Judge’s decision creates an incentive for young persons to be transferred to an adult facility or that it reduces the period of custody that individuals in circumstances similar to those of the respondent must wait before being considered for parole. Both sides attempted to provide examples which, in their view, demonstrated that their interpretation was the correct one and that the other side’s interpretation led to an absurd result. I see no useful purpose in dealing with these examples since I am satisfied that the Judge reached the correct interpretation of the word “sentence”. If this interpretation gives rise to problems of the type suggested by the appellant, Parliament will no doubt be in a position to correct the matter by amending the legislation.
[77] I now turn to the second and third issues before us which pertain to the Board’s jurisdiction over young persons serving the custody portion of their youth sentence in an adult facility.
[78] The appellant submits that the Judge’s decision confuses rather than clarifies the jurisdiction of the Board within the youth criminal justice system. In particular, the appellant says that the Judge’s finding that the Board does not have authority over the respondent once the 22-month period of custody terminates is inconsistent with his finding that the Board will resume jurisdiction if the respondent is later recommitted during the conditional portion of his youth sentence.
[79] To this, the respondent replies that as a matter of principle, all orders of custody, as sentences of imprison-
ment, should be treated similarly for the purposes of the CCRA. Consequently, a young person recommitted to custody will have to reapply for parole when eligible.
[80] After consideration of the parties’ respective arguments on this issue, the Judge concluded in the following terms (at paragraph 63):
Absent a decision to continue custody or to return the offender to custody for the remainder of the sentence, the Board’s jurisdiction expires, in my view, when the applicant is no longer required to be detained under the terms of the custodial portion of his sentence. This conclusion does not lead to a jurisdictional void as he will remain under the supervision of the provincial director and the sentencing court.
[81] The appellant’s submission that the Board should continue to exercise jurisdiction over the respondent, even after the termination of his period of custody, is in conflict with the principles of the YCJA. Indeed, section 89 of the YCJA transfers the custodial portion of the youth sentence only to adult correctional authorities or to the Board if parole is granted to the young person. It necessarily follows, in my view, that once the custodial portion of the sentence has been served or has come to an end, the youth court and the provincial director retain their exclusive jurisdiction over the young person.
[82] It is clear from the Judge’s decision, particularly by reason of his reference to the decision of Mr. Justice Duncan in R. v. K.(C.), above, that he accepted the principle that adult facilities were bound to accommodate a young person “in a way that conforms to the principles of youth criminal justice” (see paragraph 60 of the Judge’s reasons). In my view, he also accepted that the boundary between the youth justice system and the adult justice system had not been clearly delineated by the existing legislation, but that the spirit and intent of the YCJA required that the youth justice court and the provincial director retain jurisdiction over a young offender upon termination of his or her period of custody.
[83] I have not been persuaded that, in concluding as he did, the Judge made any reviewable error. On the contrary, I am satisfied that his conclusion is the correct one. Consequently, as the Judge found, the jurisdiction of the provincial director and of the youth justice court over the respondent will resume once the custody portion of the youth sentence expires. Subsections 6(7.2) [as enacted by S.C. 2002, c. 1, s. 197] and 6(7.3) [as enacted idem] of the PRA provide support for that point of view. These provisions address the “effect of release” on a young person who has been transferred to an adult facility and read as follows:
| 6. … |
|
| Exceptional date of release |
(7.2) When a prisoner who was sentenced to custody under paragraph 42(2)(o), (q) or (r) of the Youth Criminal Justice Act is transferred from a youth custody facility to a prison under section 92 or 93 of that Act, or is committed to imprisonment in a prison under section 89 of that Act, the prisoner is entitled to be released on the earlier of (a) the date on which the prisoner is entitled to be released from imprisonment in accordance with subsection (5) of this section, and (b) the date on which the custody portion of his or her youth sentence under paragraph 42(2)(o), (q) or (r) of the Youth Criminal Justice Act expires. |
| Effect of release |
(7.3) When a prisoner is committed or transferred in accordance with section 89, 92 or 93 of the Youth Criminal Justice Act and, in accordance with subsection (7.1) or (7.2) of this section, is entitled to be released, (a) if the sentence was imposed under paragraph 42(2)(n) of that Act, sections 97 to 103 of that Act apply, with any modifications that the circumstances require, with respect to the remainder of his or her sentence; and (b) if the sentence was imposed under paragraph 42(2)(o), (q) or (r) of that Act, sections 104 to 109 of that Act apply, with any modifications that the circumstances require, with respect to the remainder of his or her sentence. |
[84] Subsection 6(7.2) of the PRA provides that the date of release of a young person sentenced to custody under, inter alia, paragraph 42(2)(q) of the YCJA is the earlier of the date on which the young person is entitled to be released, in accordance with subsection 6(5) [as am. by S.C. 1995, c. 42, s. 82] of the PRA which deals with the effect of remission, and the date on which the young person’s period of custody under paragraph 42(2)(q) expires. As to subsection 6(7.3), it provides that upon the release from custody of a young person, whose sentence was imposed under, inter alia, paragraph 42(2)(q) of the YCJA, and who was committed or transferred to an adult facility in accordance with, inter alia, section 89 of the YCJA, sections 104 to 109 shall apply “to the remainder of his or her sentence”.
[85] In other words, upon release from custody, a young person whose sentence was imposed under paragraph 42(2)(q) of the YCJA will be subject, pursuant to sections 104 to 109 of the YCJA, to the jurisdiction of the youth justice system authorities, i.e. the youth sentence court and the provincial director of the province in which the youth sentence was imposed. Thus, these provisions support the view that the Board’s jurisdiction over young persons committed to adult facilities, pursuant to subsection 89(3) of the YCJA, is at an end when the custodial portion of their sentence terminates.
[86] I therefore conclude that the Judge made no error in concluding that the Board’s jurisdiction expired when the respondent could no longer be detained under the terms of his youth sentence. I also conclude that the Judge was correct in holding that the Board would retain jurisdiction should the respondent’s custody be continued until the end of the conditional supervision portion of his youth sentence or should he be returned to custody for the remainder of his youth sentence by order of the youth justice court. In such a scenario, the respondent would necessarily be committed, pursuant to subsection 89(1) of the YCJA, to a provincial correctional facility for adults and, thus, pursuant to subsection 89(3), the CCRA and the PRA would find application. As a consequence, the Board would have jurisdiction over the respondent.
[87] For these reasons, I would dismiss the appeal with costs.
Blais C.J.: I agree.
Evans J.A.: I agree.