T-671-12
2012 FC 1463
Brent William van Buskirk (Applicant)
v.
Canada (Solicitor General) (Respondent)
Indexed as: van Buskirk v. Canada (Solicitor General)
Federal Court, Shore J.—Vancouver, November 27; Ottawa, December 11, 2012.
Parole — Judicial review of calculation of applicant’s parole eligibility dates by Chief of Sentence Management (CSM) at penal institution — Applicant seeking to have eligibility dates recalculated to exclude community supervision portion of youth sentence — Applicant minor when committing murder but adult when committing other crimes — Serving aggregate sentence of 17 years, 2 months — Sentenced under Youth Criminal Justice Act (YCJA), s. 42(2)(q)(i), which included custodial YCJA sentence, conditional community supervision (non-custodial YCJA sentence) — Later, applicant receiving concurrent adult sentences under Criminal Code (Code), s. 465(1)(a) — Applicant’s sentences considered one sentence under Corrections and Conditional Release Act (CCRA), s. 139 — On June 13, October 23, 2012, CCRA amended making non-custodial youth sentences under YCJA, s. 42(2)(q)(i) included in calculating individual’s parole eligibility dates, statutory release date, warrant expiry date — CSM determining that applicant’s sentences merged under CCRA, s. 139; therefore, including applicant’s 48-month non-custodial YCJA sentence when calculating eligibility dates — Whether recent amendments to CCRA applying to applicant to include applicant’s non-custodial YCJA sentence in determining his parole eligibility dates — Plain reading of Code, s. 743.5(3)(a) suggesting that applicant’s non-custodial YCJA sentence must be included in calculating his parole eligibility under CCRA — Federal Court of Appeal decision in J.P. v. Canada (Attorney General) involving youth sentenced under YCJA discussed, distinguished from present case — Applicant’s judicial review in regard to calculation of applicant’s parole eligibility under CCRA, ss. 119(1)(c) 120.1, denied on basis of Criminal Code, s. 743.5(3)(a) whereby applicant’s non-custodial YCJA sentence deemed single sentence of imprisonment for purpose of sentence merger provisions in CCRA, s. 139 —Application dismissed.
This was an application for judicial review of the calculation of the applicant’s parole eligibility dates by the Chief of Sentence Management (CSM) at a penal institution in British Columbia. The applicant submitted that the CSM committed an error of law by including the community supervision portion of his youth sentence in calculating his day parole, full parole and statutory release dates under the Corrections and Conditional Release Act (CCRA); he sought to have his eligibility dates recalculated to exclude the community supervision portion of his youth sentence.
The applicant was a first-time offender serving an aggregate sentence of 17 years, 2 months. He was a minor when he committed the crime of murder but was 18 when he entered into conspiracies to murder certain individuals. The applicant pled guilty to first degree murder and received a sentence under subparagraph 42(2)(q)(i) of the Youth Criminal Justice Act (YCJA) of 6 years in custody (custodial YCJA sentence) and 4 years of conditional community supervision (non-custodial YCJA sentence) minus deductions for time already served. Later, the applicant received concurrent adult sentences of 8 and 6 years for conspiracy to commit murder (minus credit for pre-sentence custody) under paragraph 465(1)(a) of the Criminal Code (Code), which sentences were to run consecutively to a another sentence he had received and the YCJA sentences. The applicant was informed of his eligibility dates by Correctional Service of Canada (CSC), which had included his non-custodial YCJA sentence in the calculation. At the applicant’s request, it was later confirmed that all of the applicant’s sentences were considered one sentence under section 139 of the CCRA.
On June 13 and October 23, 2012, the CCRA was amended, making non-custodial youth sentences under subparagraph 42(2)(q)(i) of the YCJA included in calculating an individual’s eligibility dates for full parole and day parole, an individual’s statutory release date and warrant expiry date.
The CSM determined that the applicant’s sentences had been merged under section 139 of the CCRA and, in doing so, the CSM included the applicant’s 48-month non-custodial YCJA sentence. The CSM consequently calculated the applicant’s eligibility dates according to an aggregate sentence of 17 years and 2 months. The applicant argued that his non-custodial YCJA sentence should not be included in determining his parole eligibility dates because parole cannot attach to non-custodial sentences whereas the respondent argued that no error was made in calculating the applicant’s parole eligibility dates and that the applicant’s non-custodial YCJA sentence should be included in determining his parole eligibility due to recent amendments to the CCRA.
The issue was whether the recent amendments to the CCRA applied to the applicant to include his non-custodial YCJA sentence in determining his parole eligibility dates.
Held, the application should be dismissed.
The applicant argued that pursuant to J.P. v. Canada (Attorney General), a non-custodial YCJA sentence does not fall within the meaning of “sentence” under the CCRA for the purposes of calculating parole eligibility dates. However, a plain reading of paragraph 743.5(3)(a) of the Code suggested that the applicant’s non-custodial YCJA sentence must be included in calculating his parole eligibility under the CCRA. The critical distinction between this application and the one decided by the Federal Court of Appeal in J.P. was that subsection 743.5(1) and paragraph 743.5(3)(a) of the Code applied to the applicant in this case but did not apply to the applicant in J.P.. In J.P., the applicant was convicted and sentenced as a youth under the YCJA and did not receive a consecutive sentence as an adult under the Code. The Federal Court of Appeal held that the definition of “sentence” in section 2 of the CCRA could not encompass a non-custodial youth sentence. The applicant in the present case was subject to the conversion provisions under section 743.5 of the Code because he was sentenced to a term of imprisonment for an offence while subject to a youth sentence imposed under paragraph 42(2)(q) of the YCJA. The effect of subsection 743.5(1) of the Code was that his youth sentence under paragraph 42(2)(q) of the YCJA had to be dealt with as if it had been a sentence imposed under the Code. The effect of paragraph 743.5(3)(a) of the Code, which applied to the applicant, is that the rationale underlying the decision in J.P. could not apply to this application. By virtue of paragraph 743.5(3)(a), the applicant’s non-custodial YCJA sentence was deemed a single sentence of imprisonment for the purpose of the sentence merger provisions in section 139 of the CCRA. Under section 139 thereof, the applicant’s non-custodial YCJA sentence merged with his other sentences into a single sentence for the purposes of calculating his parole eligibility dates under sections 119 and 120.1 of the CCRA.
Even though paragraph 743.5(3)(a) of the Code was determinative of this application, it was worth considering whether the CCRA amendments would have been of immediate or retroactive application if the applicant were not subject to section 743.5 of the Criminal Code. A plain reading of paragraph 119(1) and section 120.1 of the unamended CCRA suggested that the amended CCRA would have operated to change the past legal effect of the applicant’s ongoing eligibility for full parole and day parole if section 745.3 of the Code had not applied by delaying the date on which he became eligible to apply for full and day parole. Since the applicant would (but for section 743.5 of the Code) have already been eligible to apply by the time the amendments to the CCRA came into force, applying those amendments to his circumstances would have had the effect of changing the past legal effect of this situation. Consequently, the amendments in such circumstances would have resulted in an impermissible retroactive application of the law.
Pursuant to subsection 743.5(3) of the Code and section 139 of the CCRA, the applicant’s non-custodial YCJA sentence also had to be included in calculating his statutory release date. Section 743.5 of the Code and section 139 of the CCRA merged the applicant’s non-custodial YCJA sentence with his other sentences into a single sentence of imprisonment for the purposes of calculating his statutory release date under section 127 of the CCRA.
While hearing the present application did not have the effect of resolving a controversy which could affect the rights of the parties, (the applicant had become eligible for both day and full parole), the factor of judicial economy militated highly in favour of hearing the application. The issues of whether paragraph 743.5(3)(a) already applied to include a non-custodial YCJA sentence in calculating parole eligibility dates and whether the amendments to the CCRA had an immediate or retrospective effect on the calculation of the day and full parole of individuals was very likely to arise in other applications.
STATUTES AND REGULATIONS CITED
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 2(1) “sentence”, 99, 119, 119.2, 120, 120.1, 120.2, 120.3, 127, 139.
Criminal Code, R.S.C., 1985, c. C-34, ss. 465(1)(a), 743.5.
Federal Courts Act, R.S.C., 1985, c. F-7, s. 18.1.
Safe Streets and Communities Act, S.C. 2012, c. 1, ss. 75, 76, 196, 197.
Safe Streets and Communities Act: Order Fixing Various Dates as the Day on which Certain Sections of the Act Come into Force, SI/2012-48.
Safe Streets and Communities Act: Order Fixing June 13, 2012 as the Day on which Sections 52 to 107 and 147 of the Act Come into Force, SI/2012-40.
Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 42(2)(q), 89(1),(3).
CASES CITED
applied:
J.P. v. Canada (Attorney General), 2009 FC 402, [2010] 3 F.C.R. 3, affd 2010 FCA 90, [2011] 4 F.C.R. 29 (as to standard of review); Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, (1989), 57 D.L.R. (4th) 231; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271, (1975), 66 D.L.R. (3d) 449.
distinguished:
J.P. v. Canada (Attorney General), 2009 FC 402, [2010] 3 F.C.R. 3, affd 2010 FCA 90, [2011] 4 F.C.R. 29.
considered:
R. v. M. (C.A.), [1996] 1 S.C.R. 500, (1996), 73 B.C.A.C. 81; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. K. (C.), 2008 ONCJ 236 (CanLII), 233 C.C.C. (3d) 194; R. v. Van Buskirk, 2007 BCSC 1925; R. v. C.(A.), 2008 ONCJ 613 (CanLII); Attorney General of Quebec v. Expropriation Tribunal et al., [1986] 1 S.C.R. 732, (1986), 66 N.R. 380.
AUTHORS CITED
Baudouin, L. Les aspects généraux du droit public dans la province de Québec. Paris: Dalloz, 1965.
Côté, Pierre-André. The Interpretation of Legislation in Canada. Cowansville, Que.: Yvon Blais, 1984.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
APPLICATION for judicial review of the calculation of the applicant’s parole eligibility dates by the Chief of Sentence Management at a penal institution in British Columbia. Application dismissed.
APPEARANCES
Patrick M. Fullerton for applicant.
Mark E. W. East for respondent.
SOLICITORS OF RECORD
Smart, Harris & Martland, Vancouver, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment and judgment rendered in English by
Shore J.:
I. Introduction
[1] The applicant seeks judicial review of the calculation of his parole eligibility dates by the Chief of Sentence Management (CSM) at Kent Institution in Agassiz, British Columbia. According to the applicant, the CSM committed an error of law by including the community supervision portion of his youth sentence in calculating his day parole, full parole, and statutory release dates (eligibility dates) under the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA). The applicant asks this Court to order that his eligibility dates be recalculated to exclude the community supervision portion of his youth sentence.
II. Judicial Procedure
[2] This is an application for judicial review under section 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7 of the CSM’s decision, dated February 29, 2012.
III. Background
[3] The applicant, Mr. Brent William van Buskirk, was born in 1986 and is a first-time offender serving an aggregate sentence of 17 years, 2 months.
[4] On August 29, 2004, the applicant (a few weeks before his 18th birthday) murdered an individual pursuant to a contract killing for profit.
[5] In December 2004, the applicant (then aged 18) entered into a conspiracy with a co-conspirator to murder an individual. The conspiracy did not come to fruition.
[6] In January 2005, the applicant entered into another conspiracy to kill another individual. This conspiracy did not proceed beyond the planning stage.
[7] On December 21, 2006, the applicant received a 24-month custodial sentence for the common law offence of contempt of court (contempt of court sentence) because he refused to be sworn and to give evidence in the trial of his co-conspirator.
[8] On November 30, 2007, the applicant pled guilty to first degree murder and received a sentence under subparagraph 42(2)(q)(i) of the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA) of 6 years in custody (custodial YCJA sentence) and 4 years of conditional community supervision (non-custodial YCJA sentence). One year and 2 months were deducted from the custodial YCJA sentence for time already served.
[9] On December 10, 2007, the applicant received concurrent sentences of 8 and 6 years for two counts of conspiracy to commit murder (adult conspiracy sentences) under paragraph 465(1)(a) of the Criminal Code, R.S.C., 1985, c. C-34 (Code). The applicant’s adult conspiracy sentences were to run consecutively to his contempt of court sentence and the YCJA sentences. The applicant received a credit of one year for pre-sentence custody towards each count of conspiracy to commit murder.
[10] The applicant’s sentences commenced on December 21, 2006.
[11] On December 13, 2007, the Correctional Service of Canada (CSC) informed the applicant that his warrant expiry date was February 20, 2024, his statutory release date was June 1, 2018, his full parole eligibility date was December 19, 2012, and his day parole eligibility date was June 19, 2012.
[12] In calculating the applicant’s eligibility dates, the CSC had included his non-custodial YCJA sentence, bringing his aggregate sentence to 17 years and 2 months.
[13] On February 27, 2012, the applicant made submissions to the CSM requesting an affidavit outlining his eligibility dates and asking if the combined sentences were considered one sentence under section 139 of the CCRA.
[14] On February 29, 2012, the CSM confirmed that all of the applicant’s sentences were considered one sentence under section 139 of the CCRA and provided the affidavit requested by the applicant and described in paragraph 11, above.
[15] On June 13, 2012 and October 23, 2012, the CCRA was amended to make express Parliament’s intention that non-custodial youth sentences under subparagraph 42(2)(q)(i) would be included in calculating an individual’s eligibility dates for full parole and day parole, an individual’s statutory release date, and an individual’s warrant expiry date.
IV. Decision under Review
[16] The CSM determined that the applicant’s sentences had been merged under section 139 of the CCRA. In merging these sentences, the CSM included his 48-month non-custodial YCJA sentence. The CSM consequently calculated his eligibility dates according to an aggregate sentence of 17 years and 2 months.
[17] According to the CSM’s calculations, the applicant’s eligibility date for day parole was June 19, 2012 and for full parole was December 19, 2012, his statutory release date was June 1, 2018, and his warrant expiry date was February 20, 2024.
V. Issue
[18] Do the recent amendments to the CCRA apply to the applicant to include his non-custodial YCJA sentence in determining his eligibility dates?
VI. Relevant Legislative Provisions
[19] Please see Annex A for the relevant legislative provisions of the CCRA (including those provisions coming into force on June 13, 2012 and October 23, 2012 pursuant to the amendments to the CCRA).
[20] Please see Annex A for the relevant legislative provisions of the CCRA that applied before the amendments to the CCRA came into force on June 13, 2012 and October 23, 2012.
[21] Please see Annex A for the relevant legislative provisions of the YCJA.
[22] Please see Annex A for the relevant provisions of the Code.
VII. Position of the Parties
[23] In essence, the applicant submits that his non-custodial YCJA sentence should not be included in determining his parole eligibility dates because parole cannot attach to non-custodial sentences.
[24] The applicant cites J.P. v. Canada (Attorney General), 2009 FC 402, [2010] 3 F.C.R. 3, affd 2010 FCA 90, [2011] 4 F.C.R. 29, for the proposition that a non-custodial YCJA sentence does not fall within the meaning of “sentence” under the CCRA for the purposes of calculating parole eligibility dates. According to the applicant, the facts of J.P. parallel those in the present case, with two exceptions: (i) the applicant was sentenced under subparagraph 42(2)(q)(i) of the YCJA; and, (ii) he also received consecutive sentences as an adult under the Code.
[25] The applicant states that his sentence was converted into an adult offence under subsection 743.5(1) of the Code when he was sentenced for a term of imprisonment for conspiracy to commit murder.
[26] According to the applicant, the CCRA defines “sentence” to mean a sentence of imprisonment and youth sentence imposed under the YCJA.
[27] The applicant acknowledges that legislative reform to the Safe Streets and Communities Act [S.C. 2012, c. 1] (SSCA) has expanded the definition of “sentence” in the CCRA [subsection 2(1)] to include custodial and community supervision sentences.
[28] Notwithstanding these amendments, the applicant argues that interpreting “sentence” to include his non-custodial youth sentence is fundamentally flawed and that parole is a discretionary form of release that allows an offender to serve a portion of his custodial sentence outside the physical confines of a penal institution, it is inconsistent with and cannot attach to a sentence, or portion of a sentence that is non-custodial. The applicant cites R. v. M. (C.A.), [1996] 1 S.C.R. 500 for the proposition that custodial and non-custodial sentences are fundamentally different and R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 for the proposition that parole cannot apply to an offender who was under a conditional sentence of imprisonment and not incarcerated. The applicant, referring to J.P., above, also observes that parole cannot be granted to a young offender who has been conditionally released. Finally, the applicant refers this Court to R. v. K.(C.), 2008 ONCJ 236 (CanLII), 233 C.C.C. (3d) 194, which held [at paragraph 22] that “[t]reating a transferred youth exactly like an adult runs into an immediate difficulty in the [sic] calculation of the sentence itself” because a conversion can result in a person receiving a sentence of imprisonment in excess of the 6-year period limited by the YCJA.
[29] The respondent argues that the CSM did not err in calculating the applicant’s parole eligibility, statutory release, and warrant expiry dates. According to the respondent, the applicant’s non-custodial YCJA sentence should be included in determining his parole eligibility due to recent amendments to the CCRA.
[30] The respondent submits that Parliament introduced the SSCA to extend the meaning of “sentence” under subsection 2(1) and section 99 of the CCRA to include non-custodial youth sentences in response to J.P., above.
[31] In particular, section 196 of the SSCA modifies the definition of “sentence” in subsection 2(1) of the CCRA to include a youth sentence consisting of a custodial portion and a non-custodial portion. As modified by section 197 of the SSCA, paragraph 99(2)(b) of the CCRA also now provides that the expiration of a sentence refers to the day on which the sentence expires, notwithstanding the non-custodial portion of a youth sentence. Finally, section 75 of the SSCA introduces section 119.2 of the CCRA, which provides that, for the purposes of sections 120 to 120.3 of the CCRA, parole eligibility for a youth sentence is determined on the basis of the total of its custodial and non-custodial periods.
[32] The respondent states that section 76 of the SSCA [which amends sections 120 to 120.3 of the CCRA] came into force on June 13, 2012 and sections 196 and 197 of the SSCA came into force on October 23, 2012.
[33] According to the respondent, the CSM calculated the applicant’s parole eligibility on the basis that (i) his youth sentences were converted into adult sentences under subsection 743.5(1) of the Code and that (ii) his youth and adult sentences were merged into one sentence under section 139 of the CCRA.
[34] According to the respondent’s construction, section 743.5 of the Code deems a YCJA sentence to be a sentence imposed under the Code where an individual receives a youth sentence under subparagraph 42(2)(q)(i) of the YCJA but receives a subsequent sentence as an adult. The respondent reasons that section 743.5 of the Code brings the applicant’s youth sentence within the scope of subsection 139(1) of the CCRA. In the interpretation advanced by the respondent, subsection 139(1) provides that an individual is deemed to have been sentenced to one sentence if he or she is (i) subject to a sentence that has not expired and (ii) receives additional sentences (merged sentence); the merged sentence begins on the first of those sentences to be served and ends on the expiration of the last of them to be served.
[35] The respondent argues that the applicant’s consecutive sentences trigger section 120.1 of the CCRA, which outlines how parole is calculated if additional consecutive sentences are imposed. Pursuant to section 120.1 of the CCRA, the applicant’s eligibility for parole is calculated from December 10, 2007, the date of the imposition of his youth sentence of 8 years and 2 months and his adult sentence for conspiracy to commit murder of 7 years. The respondent claims that the applicant’s parole eligibility is determined on the basis of a sentence of 15 years and 2 months.
[36] The respondent argues that the applicant’s eligibility date for full parole is 1/3 of his consecutive sentence of 15 years and 2 months under subsection 120(1) and section 120.1 of the CCRA. Under paragraph 119(1)(c) of the CCRA, the applicant became eligible for day parole 6 months before he becomes eligible for full parole. The effect of these provisions, the respondent submits, is that the applicant’s eligibility dates are December 19, 2012 and June 19, 2012 for full parole and day parole, respectively.
[37] The respondent states that section 127 of the CCRA entitles a person serving a determinate sentence to release after serving a period of custody of not less than 2/3 of their sentence (statutory release date). Based on a sentence of 17 years and 2 months, the applicant’s statutory release date is June 1, 2018.
[38] The respondent further claims that an order in the applicant’s favor will have the effect of reducing his sentence by four years. This, he argues, is inconsistent with section 743.5 of the Code and makes J.P., above, distinguishable.
[39] The respondent submits that the applicant’s real purpose in bringing this application for judicial review is to reduce his sentence. According to the respondent, if the applicant’s non-custodial YCJA sentence is not converted under section 743.5 of the Code and merged under section 139 of the CCRA, it will either disappear or remain as a concurrent portion of a youth sentence under the YCJA. This will reduce his sentence for first degree murder by four years. The respondent submits that this is not consistent with the sentencing decision of the British Columbia Supreme Court in R. v. Van Buskirk, 2007 BCSC 1925, which expressly made the applicant’s sentence for conspiracy to commit murder consecutive to his sentence for first degree murder. Nor, the respondent argues, is this interpretation consistent with a plain reading of sections 743.5 of the Code and 139 of the CCRA, which seek to treat offenders with multiple consecutive offences as adults serving a single sentence under the Code.
[40] J.P., above, according to the respondent, addressed the discrete issue of including non-custodial youth sentences in calculating parole eligibility. By contrast, the applicant’s consecutive adult sentence triggered the application of subsection 743.5(1) of the Code. The respondent reasons that the effect of subsection 743.5(1) is that the YCJA no longer applies to the applicant. Since subsection 743.5(1) deems the applicant to having been sentenced under the Code, the respondent submits that the YCJA’s provisions with respect to community supervision, conditional supervision, and continuation of custody no longer apply. According to the respondent, the Federal Court of Appeal in J.P., above, did not address the sentence conversion and merger provisions in sections 743.5 of the Code and 139 of the CCRA and, as a result, is neither guiding nor binding on this Court.
[41] The respondent submits that, should this Court find that the amendments to the CCRA in the SSCA do not apply to the applicant because they came into effect after he was sentenced, then it should direct the CSC to administer the sentence in a manner consistent with the terms of the youth sentence under the YCJA. In particular, this Court should order the CSC to convert the supervision YCJA sentence of four years into a similar period of statutory release under the CCRA. The respondent reasons that the statutory release provisions in section 127 of the CCRA are analogous to the community supervision provisions in subparagraph 42(2)(q)(i) of the YCJA. Such an approach would convert the applicant’s first degree murder sentence into a period of four months and two years in prison and a period of statutory release for four years.
[42] The respondent submits that this approach respects the intention of Parliament as expressed in sections 743.5 of the Code and 139 of the CCRA and that it maintains the integrity of the sentence, respects the principles informing youth sentences under the YCJA, and avoids the potential problem of subjecting the applicant to the dual jurisdiction of the Parole Board of Canada (while on parole) and of the provincial director, youth workers, and youth justice court (while serving his non-custodial YCJA sentence).
[43] Finally, the respondent argues that this application for judicial review is moot or will likely be moot at the date of the hearing of this application for judicial review. According to the respondent, the applicant became eligible for day parole under subsection 119(1) of the CCRA on June 19, 2012 and will be eligible to apply for day parole on December 19, 2012.
[44] The respondent cites Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, for the proposition that a decision of a court is moot if it will not have the effect of resolving a controversy which affects or may affect the rights of the parties. The respondent states that a decision on this application for judicial review has no practical effect because (i) the applicant will likely be eligible to apply for full parole by the time it is heard and (ii) it is unlikely that it will have any practical effect on similarly situated applicants.
[45] The respondent distinguishes J.P., above, where this Court and the Federal Court of Appeal adjudicated a moot parole eligibility question on YCJA and adult sentencing because the issue would very likely arise in subsequent applications. The respondent argues that this rationale does not extend to this application for judicial review because amendments to the CCRA prevent applications on similar facts from succeeding. In particular, these amendments express Parliament’s intention that both custodial and non-custodial portions of sentences under the YCJA are included in calculating parole eligibility.
VIII. Analysis
[46] In J.P., above, Justice Richard Mosley of this Court held that the interpretation of the parole eligibility provisions is the standard of correctness (at paragraph 10).
[47] This Court follows Justice Mosley’s determination of the applicable standard of review. The correctness standard is even more appropriate because the dispositive question in the application for judicial review is the temporal application of recent amendments to the CCRA. A question as to the temporal application of a law is a question of law that is “‘of central importance to the legal system … and outside the … specialized area of expertise’” of the CSM. Under Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [at paragraph 55] such a question of law attracts the standard of correctness.
[48] The critical question in this application for judicial review is whether the applicant’s non-custodial YCJA sentence can be included in calculating his parole eligibility dates. A plain reading of paragraph 743.5(3)(a) of the Code suggests that the applicant’s non-custodial YCJA sentence must be included in calculating his parole eligibility under the CCRA.
[49] This application represents an interesting departure from the facts underlying the Federal Court of Appeal’s decision in J.P., above. The applicant in J.P. was convicted and sentenced as a youth under the YCJA for second degree murder and did not receive a consecutive sentence as an adult under the Code. Conversely, this applicant was convicted and sentenced as a youth under the YCJA for first degree murder and was subsequently convicted and sentenced consecutively as an adult under the Code.
[50] The facts underlying this application attract a different matrix of statutory provisions than those underlying J.P.. For the purposes of this application, the most important of these statutory provisions is paragraph 743.5(3)(a) of the Code, which provides that, where subsection 743.5(1) applies, the remainder of a youth sentence and a subsequent term of imprisonment are deemed to constitute one sentence of imprisonment for the purposes of section 139 of the CCRA. Subsection 743.5(1) provides that if a young person or an adult is or has been sentenced to a term of imprisonment for an offence while subject to a youth sentence imposed under paragraph 42(2)(q) of the YCJA, the remaining portion of the youth sentence shall be dealt with, for all purposes under this Act or any other Act of Parliament, as if it had been a sentence imposed under the Code.
[51] The dispositive issue in J.P. was the definition of “sentence” in subsection 2(1) of the CCRA and whether that definition could encompass a non-custodial youth sentence. In holding that it could not, the Federal Court of Appeal reasoned (at paragraphs 55 and 63) that the definition of “sentence” in subsection 2(1) of the CCRA was limited to custodial sentences:
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” ….
…
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) [sic] of the YCJA is a “single sanction”, only the custody portion thereof constitutes a “sentence of imprisonment”.
[52] The Federal Court of Appeal in J.P. (at paragraph 62) supported its reasoning by reading the definition of “sentence” in subsection 2(1) of the CCRA in conjunction with subsections 89(1) and (3) of the YCJA:
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 [Prisons and Reformatories Act] 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.
[53] The critical distinction between this application and J.P. is that subsection 743.5(1) and paragraph 743.5(3)(a) of the Code apply to the applicant but did not apply to the applicant in J.P. The applicant is subject to the conversion provisions under section 743.5 of the Code because he was sentenced to a term of imprisonment for an offence while subject to a youth sentence imposed under paragraph 42(2)(q) of the YCJA. The effect of subsection 743.5(1) of the Code is that his youth sentence under paragraph 42(2)(q) of the YCJA must be dealt with, for all purposes under the Code or any other Act of Parliament (including the CCRA), as if it had been a sentence imposed under the Code. Since subsection 743.5(1) applies to the applicant, paragraph 743.5(3)(a) also applies.
[54] Neither the applicant nor the respondent dispute that section 743.5 applies.
[55] The effect of paragraph 743.5(3)(a) of the Code is that the rationale underlying the Federal Court of Appeal’s decision in J.P. cannot apply to this application. The issue in J.P. was that the definition of “sentence” in subsection 2(1) of the CCRA had been limited to a sentence of imprisonment. By contrast, paragraph 743.5(3)(a) deems the applicant’s non-custodial YCJA sentence and subsequent terms of imprisonment to constitute one sentence of imprisonment for the purposes of section 139 of the CCRA.
[56] This statutory matrix neutralizes the impact of the definition of “sentence” in subsection 2(1) of the unamended CCRA that was so critical in J.P. By virtue of paragraph 743.5(3)(a) (which was in force when the applicant was sentenced), the applicant’s non-custodial YCJA sentence was deemed a single sentence of imprisonment for the purpose of the sentence merger provisions in section 139 of the CCRA. Under section 139, his non-custodial YCJA sentence merged with his other sentences into a single sentence for the purpose of calculating his parole eligibility dates under sections 119 and 120.1 of the CCRA. This single sentence began on the first day of the first of his sentences to be served and ends on the last day of the last of them to be served.
[57] In sum, this application engages a provision (paragraph 743.5(3)(a) of the Code) that did not arise on the facts in J.P. and therefore could not have influenced the Federal Court of Appeal’s determination. In this application, the conversion provisions in subsection 743.5(3) of the Code merged the applicant’s non-custodial YCJA sentence with his other sentences of imprisonment into a single sentence of imprisonment for the purpose of applying the merger provisions of the CCRA. In R. v. C.(A.), 2008 ONCJ 613 (CanLII), Justice Paul Robertson of the Ontario Court of Justice came to a similar conclusion in interpreting the conversion provisions of the Code: “[The effect of section 743.5 is that a young offender] has now been sentenced on the adult matters and is therefore presently serving [a] sentence, any youth sentence that I impose will be treated as if it was imposed under the Criminal Code as opposed to the YCJA and that the sentences will be treated as a single sentence, pursuant to s. 139 of the Corrections and Conditional Release Act” (at paragraph 18).
[58] The undersigned member of this Court observes, in obiter, that if paragraph 743.5(3)(a) had not applied, this Court would have had to consider whether the amendments to the CCRA apply to the applicant. To answer this question, this Court would have been required to assess the temporal application of subsection 2(1) “sentence”, paragraph 99(2)(b), and section 119.2 of the CCRA.
[59] Before proceeding, it is helpful to consider the distinction that Professor Ruth Sullivan draws between legislation of retroactive, retrospective and immediate application. While legislation of retroactive application operates to “change the past legal effect of a past situation” [emphasis added] and legislation of retrospective application operates to “change the future legal effect of a past situation” [emphasis added], legislation of immediate application operates to “change the future legal effect of an on-going situation” (emphasis added) (Professor Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham, Ont.: LexisNexis, 2008), at page 669).
[60] Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271 holds that there is a presumption that legislation is not construed to have retrospective effect unless [at page 279] “such a construction is expressly or by necessary implication required by the language of the Act. An amending enactment may provide that it shall be deemed to have come into force on a date prior to its enactment or it may provide that it is to be operative with respect to transactions occurring prior to it its enactment. In those instances the statute operates retrospectively.” In the present case, section 119.2 of the CCRA came into force on June 13, 2012 and the amended definition of “sentence” in subsection 2(1) and the amended version of paragraph 99(2)(b) came into force on October 23, 2012. The orders in council giving effect to the SSCA did not specify whether the amendments to the CCRA would be deemed to come into force before this date (SI/2012-48, C. Gaz 2012.II.1627; SI/2012-40, C. Gaz. 2012. II. 1410). Consequently, the presumption against retroactivity is not rebutted.
[61] Even though paragraph 743.5(3)(a) is determinative of this application and the respondent did not specifically address the presumption of retroactivity, this Court finds that it may be worthwhile to consider if the CCRA amendments would have been of immediate or retroactive application if the applicant were not subject to section 743.5.
[62] In Attorney General of Quebec v. Expropriation Tribunal et al., [1986] 1 S.C.R. 732, Justice Julien Chouinard of the Supreme Court of Canada held that a “distinction must be made between the retroactivity of legislation and its immediate effect” (at page 744). Justice Chouinard reasoned that new legislation cannot apply to immediate effects already produced or that occurred over an extended period of time before that new legislation came into effect because that would give retroactive effect to the new legislation. Nonetheless such new legislation “will apply to future effects arising out of these legal situations, which have not yet occurred at the time it came into effect” [emphasis added] (Expropriation Tribunal et al. [at page 744], citing Louis Baudouin, Les aspects généraux du droit public dans la province de Québec (Paris: Dalloz, 1965)) and that it “applies to all future effects of both pending and future legal relations” (emphasis added) ([Expropriation Tribunal et al. [at page 744], citing Professor Pierre-André Côté, The Interpretation of Legislation in Canada (Cowansville, Que.: Yvon Blais, 1984)).
[63] Expropriation Tribunal et al., concerned the application of a statute that came into force in 1973 (1973 statute) to an expropriation that began in 1970 but was discontinued in 1979. The 1973 statute required the Quebec government to seek the authorization of an expropriation tribunal before discontinuing an expropriation but the predecessor statute only required the Government to file a unilateral discontinuance. Justice Chouinard rejected the Quebec government’s argument that the 1973 statute did not apply because the appropriation began before its enactment. Even though the underlying legal situation occurred before the 1973 statute came into effect, Justice Chouinard reasoned that its application was immediate rather than retroactive. This was because the underlying situation was of an on-going nature and the effect of the 1973 statute was to change the future legal effect of that on-going situation. Indeed, Justice Chouinard [at page 745] accepted the respondent’s argument that the 1973 statute “intended to remove for the future the right to file a unilateral discontinuance previously enjoyed by the appellant. That section has no effect on the right in so far as it was exercised before [section] 55 came into effect” (emphasis added).
[64] Are the amendments to the CCRA of retroactive or immediate application? If section 743.5 of the Code had not applied, would these amendments have operated to change the past legal effect of the applicant’s past parole eligibility or would they have changed the future legal effect of his on-going parole eligibility?
[65] A plain reading of paragraph 119(1)(c) and section 120.1 of the unamended CCRA suggests that the amended CCRA would have operated to change the past legal effect of the applicant’s on-going eligibility for full parole and day parole if section 745.3 of the Code had not applied.
[66] Section 120.1 of the unamended CCRA provides that an offender who receives an additional consecutive sentence is not eligible for full parole until the day on which he or she has served, commencing on the day on which that additional sentence was imposed: (i) any remaining period of ineligibility in relation to the sentence the offender was serving when the additional sentence was imposed; and, (ii) the period of ineligibility in relation to the additional sentence. Section 120 of the unamended CCRA provides that 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 1/3 of the sentence and seven years. Under paragraph 119(1)(c) of the unamended CCRA, the portion of a sentence that must be served by an offender serving a sentence of two years or more before he or she may be released on day parole is, subject to non-applicable exceptions, the greater of (i) the portion ending six months before the date on which full parole may be granted, and (ii) six months.
[67] Before the amendments to the CCRA came into force on June 13, 2012 and October 23, 2012, the unamended definition of “sentence” in subsection 2(1) of the CCRA applied to the applicant. In J.P., above, Justice Marc Nadon held that, under this definition, the non-custodial portion of a YCJA sentence could not be included in determining the applicant’s parole eligibility dates (at paragraphs 65 and 67).
[68] If section 743.5 had not applied to this application, the past legal effect of the unamended CCRA (as interpreted by Justice Nadon in J.P., above, would have been that the applicant would become eligible to apply for full parole and for day parole before section 119.2 of the CCRA came into force on June 13, 2012 and before the amended definition of “sentence” in subsection 2(1) and paragraph 99(2)(b) of the CCRA came into force on October 23, 2012.
[69] The amendments to the CCRA, if section 743.5 had not been engaged, would have changed the past legal effect of the applicant’s ability to apply for full parole and day parole by delaying the date on which he became eligible to apply for full parole to December 19, 2012 and to apply for day parole to June 19, 2012. Since the applicant would (but for section 743.5) have already been eligible to apply by the time the amendments to the CCRA came into force, applying those amendments to his circumstances would have had the effect of changing the past legal effect of this situation. Consequently, applying the amendments in such circumstances would have resulted in an impermissible retroactive application of the law.
[70] Having disposed of the question of the applicant’s full and day parole eligibility dates by applying paragraph 743.5(3)(a), it is not, of course necessary to consider the issue of retroactivity for the purposes of disposing of this application. The undersigned member of this Court stresses that paragraph 743.5(3)(a) is dispositive of this application and that the discussion of the temporality of the amendments to the CCRA is in obiter.
[71] Pursuant to paragraph 743.5(3)(a) of the Code and section 139 of the CCRA, the applicant’s non-custodial YCJA sentence must also be included in calculating the applicant’s statutory release date. Section 743.5 and section 139 merged the applicant’s non-custodial YCJA sentence with his other sentences into a single sentence of imprisonment for the purpose of calculating his statutory release date under section 127 of the CCRA.
[72] Even if paragraph 743.5(3)(a) had not been engaged, the amendments to the CCRA would have been of immediate rather than retrospective application to the applicant’s statutory release date. Consequently, the amended definition of “sentence” in subsection 2(1) of the CCRA would have applied to the determination of the applicant’s statutory release date under section 127 of the CCRA and the respondent’s concern that the applicant’s real purpose in bringing this application is to reduce his sentence would have been unwarranted.
[73] Before the amended definition of “sentence” in subsection 2(1) of the CCRA came into force on October 23, 2012 and in the absence of paragraph 743.5(3)(a), J.P., above, would have applied to exclude the applicant’s non-custodial YCJA sentence from the meaning of sentence and, thus, from the calculation of statutory release date under section 127. Under this framework and pursuant to subsections 127(1) and (3) of the CCRA, the applicant would have been entitled to be released on the day on which he completed 2/3 of his sentence (statutory release date).
[74] The applicant, however, did not reach his statutory release date before the amended CCRA came into force on October 23, 2012. At that point, the applicant had the possibility, but not an actual entitlement to, a statutory release date determined by excluding his non-custodial YCJA sentence. Such an entitlement was subject to the condition precedent that the applicant had completed 2/3 of his sentence. Until that condition precedent had been satisfied, it cannot be said that the past legal effect of the applicant’s situation is changed by the inclusion of his custodial YCJA sentence in calculating his statutory release date. Consequently, subsection 2(1) of the amended CCRA would have been of immediate application to the application, if paragraph 743.5(3)(a) did not already apply to include his non-custodial YCJA sentence in calculating his statutory release date. That is to say that it would have changed the future legal effect of his previous sentencing situation.
[75] This Court adds that, even if a law is of immediate application, it may interfere with a vested right (Expropriation Tribunal et al., above, at page 746). The applicant would not have met the conditions precedent to establish his entitlement to an earlier statutory release date before the amended CCRA came into force. It follows that he would have had no vested right to have the previous definition of “sentence”, as interpreted by J.P., above, applied in his circumstances.
[76] This Court has decided to exercise its discretion to hear this application even though it will not have the effect of resolving a controversy which affects or may affect the rights of the parties because the applicant became eligible for day parole under subsection 119(1) of the CCRA on June 19, 2012 and for full parole under section 120.1 of the CCRA on December 19, 2012.
[77] Borowski, above, holds that the following factors ought to be considered in exercising the discretion to hear an application notwithstanding its mootness: (i) the existence of an adversarial relationship; (ii) the concern for judicial economy; and (iii) the court’s proper function to adjudicate and not legislate.
[78] The factor of judicial economy militates highly in favor of hearing this application. The issues of whether paragraph 743.5(3)(a) already applies to include a non-custodial YCJA sentence in calculating parole eligibility dates and whether the amendments to the CCRA have an immediate or retrospective effect on the calculation of the day and full parole of individuals is very likely to arise in other applications. As Justice John Sopinka stated in Borowski, above, “The economics of judicial involvement are weighed against the social cost of continued uncertainty in the law” (at page 361).
IX. Conclusion
[79] For all of the above reasons, as this matter is not moot as discussed above, the applicant’s application for judicial review in regard to the calculation of the applicant’s parole eligibility under section 120.1 of the CCRA and under paragraph 119(1)(c) of the CCRA is denied on the basis of paragraph 743.5(3)(a) of the Code.
[80] The question in the application of the applicant to this Court is in respect of the calculation of parole eligibility. The derivation of that calculation stems from the recognition that the applicant’s sentence under the Youth Criminal Justice Act is to be interpreted as if the sentence had been under the Criminal Code.
JUDGMENT
THIS COURT ORDERS that review be denied with respect to the calculation of the applicant’s eligibility dates for full parole under section 120.1 of the CCRA and for day parole under paragraph 119(1)(c) of the CCRA.
ANNEX A
Relevant Legislative Provisions
The following legislative provisions of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA) (including those provisions coming into force on June 13, 2012 and October 23, 2012 pursuant to the amendments to the CCRA) are relevant:
| Definitions |
2. (1) In this Part, … |
| “sentence” « peine » ou « peine d’emprisonne-ment » |
“sentence” means a sentence of imprisonment and includes (a) 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 (b) a youth sentence imposed under the Youth Criminal Justice Act consisting of a custodial portion and a portion to be served under supervision in the community subject to conditions under paragraph 42(2)(n) of that Act or under conditional supervision under paragraph 42(2)(o), (q) or (r) of that Act; … |
| 99. … |
|
| References to expiration of sentence |
(2) For the purposes of this Part, a reference to the expiration according to law of the sentence of an offender shall be read as a reference to the day on which the sentence expires, without taking into account (a) any period during which the offender could be entitled to statutory release; (b) in the case of a youth sentence imposed under the Youth Criminal Justice Act, the portion to be served under supervision in the community subject to conditions under paragraph 42(2)(n) of that Act or under conditional supervision under paragraph 42(2)(o), (q) or (r) of that Act; or (c) any remission that stands to the credit of the offender on November 1, 1992. … |
| 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 (a) one year, where the offender was, before October 15, 1977, sentenced to preventive detention; (b) where the offender is an offender, other than an offender referred to in paragraph (b.1), who was sentenced to detention in a penitentiary for an indeterminate period, the longer of (i) the period required to be served by the offender to reach the offender’s full parole eligibility date, determined in accordance with section 761 of the Criminal Code, less three years, and (ii) the period required to be served by the offender to reach the offender’s full parole eligibility date, determined in accordance with subsection 120.2(2), less three years; (b.1) where the offender was sentenced to detention in a penitentiary for an indeterminate period as of the date on which this paragraph comes into force, the longer of (i) three years, and (ii) the period required to be served by the offender to reach the offender’s full parole eligibility date, determined in accordance with subsection 120.2(2), less three years; (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. … |
| Youth sentence |
119.2 For the purposes of sections 120 to 120.3, the eligibility for parole of a young person in respect of whom a youth sentence is imposed under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act and who is transferred to a provincial correctional facility for adults or a penitentiary under section 89, 92 or 93 of that Act shall be determined on the basis of the total of the custody and supervision periods of the youth sentence. |
| 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. … |
| Multiple sentences on same day |
120.1 (1) A person who is not serving a sentence and who receives more than one sentence on the same day is not eligible for full parole until the day on which they have served a period equal to the total of (a) the period of ineligibility in respect of any portion of the sentence constituted under subsection 139(1) that is subject to an order under section 743.6 of the Criminal Code or section 140.4 of the National Defence Act, and (b) the period of ineligibility in respect of any other portion of that sentence. |
| One or more additional consecutive sentences |
(2) If an offender who is serving a sentence, or is serving a sentence that was constituted under subsection 139(1), receives an additional sentence that is to be served consecutively to the sentence they are serving when the additional sentence is imposed — or receives, on the same day, two or more additional sentences to be served consecutively and the additional sentences are to be served consecutively to the sentence they are serving when the additional sentences are imposed — the offender is not eligible for full parole until the day on which they have served, from the day on which the additional sentence is or sentences are imposed, the total of the following periods: (a) any remaining period of ineligibility in respect of the sentence they are serving when the additional sentence is or sentences are imposed, and (b) the period of ineligibility in respect of the additional sentence or, in the case of two or more additional sentences, a period equal to the total of the periods of ineligibility in respect of all of the additional sentences. |
| Additional sentence to be served consecutively to portion sentence |
(3) Despite subsection (2), if an offender who is serving a sentence or a sentence that was constituted under subsection 139(1) receives an additional sentence or two or more sentences that are to be served consecutively to a portion of the sentence they are serving when the additional sentence is imposed — or receives, on the same day, two or more additional sentences including a sentence to be served concurrently with the sentence being served and one or more sentences to be served consecutively to the additional concurrent sentence — they are not eligible for full parole until the day on which they have served, from the day on which the additional sentence is or sentences are imposed, any remaining period of ineligibility to which they are subject and the longer of the following periods: (a) one third of the period that equals the difference between the length of the sentence that was constituted under subsection 139(1), including the additional sentence or sentences, and the length of the sentence that they are serving when the additional sentence is or sentences are imposed; or (b) the period of ineligibility of the additional sentence that is or sentences that are ordered to be served consecutively. |
| Additional concurrent sentence |
120.2 (1) Subject to subsection (2), if an offender who is serving a sentence, or is serving a sentence that was constituted under subsection 139(1), receives an additional sentence that is to be served concurrently with the sentence they are serving when the additional sentence is imposed, they are not eligible for full parole until the day that is the later of (a) the day on which they have served the period of ineligibility in respect of the sentence they are serving when the additional sentence is imposed, and (b) the day on which they have served (i) the period of ineligibility in respect of any portion, of the sentence that includes the additional sentence as provided by subsection 139(1), that is subject to an order under section 743.6 of the Criminal Code or section 140.4 of the National Defence Act, and (ii) the period of ineligibility in respect of any other portion of that sentence. … |
| Entitlement |
127. (1) Subject to any provision of this Act, an offender sentenced, committed or transferred to penitentiary is entitled to be released on the date determined in accordance with this section and to remain at large until the expiration of the sentence according to law. … |
| Sentence for future offences |
(3) Subject to this section, the statutory release date of an offender sentenced on or after November 1, 1992 to imprisonment for one or more offences is the day on which the offender completes two thirds of the sentence. … |
| Multiple sentences |
139. (1) For the purposes of the Criminal Code, the Prisons and Reformatories Act, the International Transfer of Offenders Act and this Act, a person who is subject to two or more sentences is deemed to have been sentenced to one sentence beginning on the first day of the first of those sentences to be served and ending on the last day of the last of them to be served. |
The following legislative provisions of the CCRA that applied before the amendments to the CCRA came into force on June 13, 2012 and October 23, 2012 are relevant:
| Definitions |
2. (1) In this Part, … |
| “sentence” « peine » ou « peine d’emprisonne-ment » |
“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; … |
| Additional consecutive sentence |
120.1 (1) Where an offender who is serving a sentence receives an additional sentence that is to be served consecutively to the sentence the offender was serving when the additional sentence was imposed, the offender is not eligible for full parole until the day on which the offender has served, commencing on the day on which the additional sentence was imposed, (a) any remaining period of ineligibility in relation to the sentence the offender was serving when the additional sentence was imposed; and (b) the period of ineligibility in relation to the additional sentence. |
| Additional sentence to be served consecutively to a portion of the sentence |
(2) Notwithstanding subsection (1), where an offender who is serving a sentence receives an additional sentence that is to be served consecutively to a portion of the sentence the offender was serving when the additional sentence was imposed, the offender is not eligible for full parole until the day that is the latest of (a) the day on which the offender has served the period of ineligibility for full parole in relation to the sentence the offender was serving when the additional sentence was imposed, (b) the day on which the offender has served, commencing on the date on which the additional sentence was imposed, the period of ineligibility for full parole in relation to the additional sentence, and (c) the day on which the offender has served the period of ineligibility for full parole in relation to the sentence that includes the additional sentence as provided by subsection 139(1). |
The following legislative provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1 (YCJA) are relevant:
| 42. … |
|
| 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 (i) in the case of first degree murder, ten 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 six years from the date of committal, and (B) a placement under conditional supervision to be served in the community in accordance with section 105, and (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; |
The following provision of the Criminal Code, R.S.C., 1985, c. C-34 (Code) are relevant:
| Transfer of jurisdiction when person already sentenced under Youth Criminal Justice Act |
743.5 (1) If a young person or an adult is or has been sentenced to a term of imprisonment for an offence while subject to a disposition made under paragraph 20(1)(k) or (k.1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act, the remaining portion of the disposition or youth sentence shall be dealt with, for all purposes under this Act or any other Act of Parliament, as if it had been a sentence imposed under this Act. |