2017 FC 604, 2017 FC 604

[2018] 1 F.C.R. 386 T-1159-16 2017 FC 604 Jimmy Bilodeau-Massé ( Applicant ) v. Attorney General of Canada ( Respondent ) Indexed as: Bilodeau-Massé v. Canada (Attorney General) Federal Court, Martineau J.—Montréal, March 27; Ottawa, June 19, 2017.

Federal Court Jurisdiction — Judicial review of Parole Board of Canada decision maintaining suspension of applicant’s long-term supervision order (LTSO), recommending new information be laid under Criminal Code, s. 753.3 — Parole Board finding that no supervision program could adequately protect society against applicant’s risk of recidivism, that applicant failing to comply with supervision conditions — Applicant, long-term offender subject to LTSO — In addition to decision, Parole Board, in exercising discretion conferred thereon under Corrections and Conditional Release Act (CCRA), s. 140(2) , determining that oral hearing not warranted in present case — Applicant having various cognitive limitations, under legal authority of Correctional Service of Canada (Service) — When applicant’s case referred to Board, counsel for applicant requesting, inter alia, in-person post-suspension hearing — CCRA, s. 140(1) stipulating that hearing mandatory in cases listed in paragraphs (

a) to (

e) thereof — However, according to CCRA, s. 140(2), Board having discretion to hold hearing in other cases, which includes post-suspension hearing following suspension of LTSO — Whether Federal Court having jurisdiction to rule on validity of CCRA, ss. 140(1),(2); if so, whether appropriate to grant declaratory relief in present case — Federal Court having jurisdiction to render declaratory judgment on constitutional validity, applicability or operability of CCRA, ss. 140(1),(2) as well as on extent of Board’s obligations under principles of fundamental justice, administrative law — Three branches of test established by Supreme Court of Canada in ITO-Int’l Terminal Operators v.

Miida Electronics met herein — As long as test met, Federal Court having jurisdiction to make declarations in constitutional matters such as declarations of invalidity — Federal Court also “superior court” for purposes of exercise of jurisdiction under Federal Courts Act , s. 18 — Although not “superior court” within meaning of Constitution Act, 1867, s. 96 , Federal Court nevertheless comparable to superior court when exercising general supervisory power over federal boards under Federal Courts Act, s. 18 — Federal Court therefore having jurisdiction to make formal declaration of invalidity in matter where constitutional question validly raised, which was case here — Appropriate here for Federal Court to exercise discretion to grant declaratory relief respecting constitutional validity, applicability or operability of CCRA, ss. 140(1),(2), respecting extent of Board’s obligations under principles of fundamental justice and/or administrative law — Court can properly issue declaratory remedy so long as having jurisdiction over issue at bar, question before court real, not theoretical, person raising issue having real interest to raise it — All stated criteria met in present case — Enough to state that Board must, in all respects, comply with principles of fundamental justice, hold in-person hearing in specific cases — Therefore, applicant having right to declaratory judgment — Application allowed in part.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Parole Board of Canada deciding, inter alia, to maintain suspension of applicant’s long-term supervision order (LTSO) — Board also exercising discretion conferred thereon under Corrections and Conditional Release Act (CCRA), s. 140(2) , determining that oral hearing not warranted in present case — Applicant arguing, inter alia, that the lack of guarantee of a post-suspension hearing violating Charter, s. 7 — Constitutional question involving Parole Board’s obligations respecting natural justice raised in present case — Whether CCRA, ss. 140(1),(2) violating Charter, s. 7 — A pplicant’s right to liberty engaged by application of mechanisms provided in CCRA, s. 135.1 — Necessary to determine whether discretionary nature of power granted under CCRA, s. 140(2) as to holding hearing breaching principles of fundamental justice — Scope of obligation to act fairly having variable content — In terms of CCRA, s. 135.1, lack of right to appeal favouring decisional process carried out with greater respect for principles of procedural fairness — Principles of fundamental justice requiring that procedure be fair — Charter, s. 7 not automatically, systemically requiring oral hearing even if rights guaranteed by provision are at issue — Insofar as CCRA, s 140(2) not legally prohibiting hearing, when this can prove necessary in specific circumstances of case being reviewed, existence of such discretionary power neutral, not conflicting with principles of fundamental justice guaranteed by Charter, s. 7.

This was an application for judicial review of a decision of the Parole Board of Canada maintaining the suspension of the applicant’s long-term supervision order (LTSO) and recommending that a new information be laid under

section 753.3 of the Criminal Code . The Parole Board found that no supervision program could adequately protect society against the applicant’s risk of recidivism and that, by all appearances, he had failed to comply with his supervision conditions. At issue in this case was the extent of the obligations of the Parole Board respecting natural justice, the law and the Canadian Charter of Rights and Freedoms when, following the suspension of an LTSO, it decides under subsection 135.1(6) of the Corrections and Conditional Release Act (CCRA) to maintain the suspension of the LTSO and/or to recommend that an information be laid charging the offender with an offence under

section 753.3 of the Criminal Code . In addition to challenging the Parole Board’s decision, the applicant sought declaratory relief. The applicant is a long-term offender subject to an LTSO until its expiry. In addition to its decision, the Parole Board, in exercising the discretion conferred upon it under subsection 140(2) of the CCRA, determined that an oral hearing was not warranted in this case. The applicant has various cognitive limitations and the mental age of a young child and is unable to ensure the protection of his person, his civil rights and to administer his property.

The applicant’s record showed persistent criminal behaviour since his criminal record began. The applicant is under the legal authority of the Correctional Service of Canada (Service). The Board imposed supervision conditions but, as a result of various breaches of these conditions, the Service suspended the applicant’s community supervision multiple times. When the applicant’s case was referred to the Board, counsel for the applicant submitted written representations while requesting an in- person post-suspension hearing.

Nevertheless, the Board maintained the suspension of the LTSO and new criminal charges were brought against the applicant for breach of the LTSO to which the applicant pleaded guilty. Subsection 140(1) of the CCRA stipulates that a hearing is mandatory in cases listed in paragraphs (

a) to (

e) thereof. However, according

to subsection 140(2) of the CCRA, the Board has the discretion to hold a hearing in other cases, which includes a post-suspension hearing following the suspension of an LTSO. The applicant argued, inter alia , that the lack of guarantee of a post-suspension hearing violates

section 7 of the Charter , that the principles of fundamental justice require that the offender be able in all cases to appear in person before the Board for a post-suspension hearing and that the Board breached procedural fairness or otherwise rendered an unreasonable decision by refusing to hold a post- suspension hearing. The main issues were whether the Federal Court had jurisdiction to rule on the validity of subsections 140(1) and (2) of the CCRA; if so, whether it was appropriate to grant declaratory relief in this case; and whether subsections 140(1) and (2) of the CCRA violated

section 7 of the Charter . Held , the application should be allowed in part. The Federal Court has jurisdiction to render a declaratory judgment on the constitutional validity, applicability or operability of subsections 140(1) and (2) of the CCRA as well as on the extent of the Board’s obligations under the principles of fundamental justice and/or administrative law. The three branches of the test established by the Supreme Court of Canada in ITO-Int’l Terminal Operators v.

Miida Electronics were met in this case: (1) a statute grants jurisdiction to the Federal Court; (2) federal law nourishes the grant of jurisdiction and is essential to the disposition of the case; and (3) that federal law is constitutionally valid. As long as the test is met, the Federal Court has jurisdiction to make declarations in constitutional matters such as declarations of invalidity.

Regarding sections 18 and 28 of the Federal Courts Act , in order to truly exercise their superintending and reforming function regarding the legality of decisions by any federal board, commission or other tribunal, the Federal Courts must perforce be able to declare inoperative and/or unconstitutional any provision inconsistent with the Constitution, the supreme law of Canada. The Federal Court is also a “superior court” for the purposes of the exercise of the jurisdiction under

section 18 of the Federal Courts Act . Although it is not a “superior court” within the meaning of

section 96 of the Constitution Act, 1867 , the Federal Court is nevertheless comparable to a superior court when it exercises general supervisory power over federal boards under

section 18 of the Federal Courts Act . The same applies when it deals with a matter under

section 17 of the Federal Courts Act . The Federal Court therefore has jurisdiction to make a formal declaration of invalidity in a matter where the constitutional question is validly raised, which was the case here. Moreover, in enacting

section 57 of the Federal Courts Act , Parliament established the statutory framework under which, for the better administration of federal laws and regulations, a constitutional question may be validly argued before the Federal Court of Appeal, the Federal Court or a federal board and, consequently, before the Supreme Court itself, when an appeal has been authorized. Accordingly, the Parliament of Canada clearly intended to allow the Federal Courts to grant binding declaratory relief in constitutional matters. Otherwise,

section 57 of the Federal Courts Act would no longer have any practical utility. It was appropriate in this case for the Federal Court to exercise its discretion to grant declaratory relief respecting the constitutional validity, applicability or operability of subsections 140(1) and (2) of the CCRA and respecting the extent of the Board’s obligations under the principles of fundamental justice and/or administrative law. No court can claim to be in a better position than the other to rule on the question of the constitutional validity of a provision of the CCRA.

According to case law, the Federal Court can properly issue a declaratory remedy so long as it has the jurisdiction over the issue at bar, the question before the court is real and not theoretical, and the person raising it has a real interest to raise it. All of these criteria were met in this case. First, the lawfulness of the actions of the Service or of the Board’s decisions could be reviewed by the Federal Court at first instance under sections 18 and 18.1 of the Federal Courts Act .

Second, the constitutional question raised by the applicant was unprecedented, was not being argued before another tribunal, and was not theoretical. Third, because the applicant was subject to an LTSO, he had a genuine interest in having the Court determine the constitutionality of subsections 140(1) and (2) of the CCRA when the Board conducts a post suspension review pursuant to

section 135.1 of the CCRA. The binding effect of a declaration of constitutional invalidity or inoperability was discussed. The Attorney General of Canada was validly constituted as the respondent in this application for judicial review and judicial declaration. In this case, the Government of Canada would be bound by this Court’s ruling, once the decision became final and all appeal mechanisms were exhausted. Therefore, any declaratory relief in this case may have a meaningful effect.

Consequently, given in particular that the Federal Court had jurisdiction in this matter, it was not in the best interests of justice to ask the applicant to have the Superior Court of Quebec address this point to resolve the constitutional question that was before the Court. The merits of the parties’ arguments on the constitutional question involving subsections 140(1) and (2) of the CCRA were also examined. Under

section 7 of the Charter , everyone has the “right to life, liberty and security of the person” and the right not to be deprived thereof except “in accordance with the principles of fundamental justice.” The applicant’s right to liberty was engaged by application of the mechanisms provided in

section 135.1 of the CCRA. It was therefore necessary to determine whether the discretionary nature of the power granted under subsection 140(2) of the CCRA as to holding a hearing breaches principles of fundamental justice. The scope of the obligation to act fairly has variable content. In terms of

section 135.1 of the CCRA, although the Board made only a recommendation that was not binding on the respondent, the offenders cannot appeal Board decisions to the Court of Appeal. The lack of a right to appeal favoured a decisional process carried out with greater respect for principles of procedural fairness. Before refusing to meet with the offender in person at a post-suspension hearing, the Board must first make sure that the reliable and convincing nature of the file’s information allows an informed decision to be made. The principles of fundamental justice do not require that an individual benefit from the most favourable procedure but require that the procedure be fair.

Section 7 of the Charter does not automatically and systemically require an oral hearing even if the rights guaranteed by this provision are at issue. Insofar as subsection 140(2) of the CCRA does not legally prohibit a hearing, when this can prove necessary in the specific circumstances of the case being reviewed, the existence of such a discretionary power is neutral and does not conflict with the principles of fundamental justice guaranteed by

section 7 of the Charter. In conclusion, although the residual liberty of a long-term offender is limited after an LTSO suspension,

section 7 of the Charter does not oblige the Board to hold a post-suspension hearing in all cases where the Service has referred the file to it. Subsections 140(1) and (2) of the CCRA do not prevent the Board from holding a post-suspension hearing in cases where it is asked to exercise the powers set out in

section 135.1 of CCRA. The discretion conferred by subsection 140(2) may be applied in a manner that respects the rights guaranteed by

the Charter, particularly when a question of credibility is a determining factor in the file. It was enough to state that the Board must, in all respects, comply with the principles of fundamental justice and hold an in-person hearing in specific cases. Therefore, the applicant had a right to a declaratory judgment. STATUTES AND REGULATIONS CITED British North America Act, 1867 (The) , 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5]. Canadian Bill of Rights , R.S.C., 1985, Appendix III, s. 2(e). Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 7, 9, 23, 24(1), 32. Canadian Human Rights Act , R.S.C., 1985, c. H-6. Citizenship Act , R.S.C., 1985, c. C-29, ss. 10(1), (3) , (4) . Code of Civil Procedure , CQLR, c. C-25.01, ss. 76, 77 . Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91(27), 92(14), 96 –101, 99, 129, 135. Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52. Corrections and Conditional Release Act , S.C. 1992, c. 20, ss. 100, 101 (a), 124(3) , 129 , 130 , 131 , 134.1(4) , 134.2(1) , 135(7) , 135.1 , 140 . Corrections and Conditional Release Regulations , SOR/92-620, ss. 161(1), 164(1) , (2) . Court of Chancery (England) Act , 1850 (U.K.), 13 & 14 Vict., c. 35. Court of Chancery Procedure Act , 1852 (U.K.), 15 & 16 Vict., c. 86. Criminal Code , R.S.C., 1985, c. C-46, ss. 753.1, 753.2(3) , 753.3 . Department of Justice Act , R.S.C., 1985, c.

J-2, ss. 2(2), 4 , 4.1(1) , 5(1) (d). Divorce Act , R.S.C., 1985 (2nd Supp.), c. 3, s. 26.1(2). Exchequer Court Act , R.S.C. 1952, c. 98, s. 29(c). Federal Child Support Guidelines , SOR/97-175. Federal Court Act , R.S.C. 1970 (2nd Supp.), c. 10, s. 18. Federal Courts Act , R.S.C., 1985, c. F-7, ss. 2 “relief”, 4, 5.3, 5.4, 17, 18, 18.1, 23, 26, 27, 28, 44, 50, 57. Food and Drugs Act , R.S.C. 1970, c. F-27. Income Tax Act , R.S.C., 1985 (5th Supp.), c. 1, s. 231.4. Indian Act , R.S.C., 1985, c. I-5.

Interpretation Act , R.S.C., 1985, c. I-21, s. 35(1) “superior court”. Jobs, Growth and Long-term Prosperity Act , S.C. 1992, c. 19 , s. 527. National Defence Act , R.S.C., 1985, c. N-5. Old Age Security Act , R.S.C., 1985, c. O-9. Order Fixing December 1, 2012 as the Day on which Sections 526 to 528 of the Act Come into Force , SI/2012-88. Rules of the Supreme Court of Canada , SOR/2002-156, r. 33. Statute of Westminster, 1931 , (U.K.), 22 Geo. V, c. 4 [R.S.C., 1985, Appendix II, No. 27]. Strengthening Canadian Citizenship Act , S.C. 2014, c. 22 .

Supreme and Exchequer Court Act (The) , S.C. 1875, c. 11, ss. 1, 15, 58, 60, 61. Supreme Court Act , R.S.C., 1985, c. S-26, ss. 3, 6 , 45 . Supreme Court of Judicature Act , 1873 (U.K.), 36 & 37 Vict., c. 66, ss. 3, 4. Tax Court of Canada Act , R.S.C., 1985, c. T-2, s. 19.2.

CASES CITED APPLIED: Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; ITO-Int’l Terminal Operators v. Miida Electronics, (SCC), [1986] 1 S.C.R. 752, (1986), (SCC), 26 D.L.R. (4th) 641; Canada (Human Rights Commission) v. CanadianLiberty Net, (SCC), [1998] 1 S.C.R. 626, (1998), 157 D.L.R. (4th) 385; Baker v. Canada (Minister of Citizenship andImmigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R.433. DISTINGUISHED: Windsor (City) v.

Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617, revg 2015 FCA 88, [2016] 1 F.C.R. 265; Canada(Procureur général) v. Way, 2015 QCCA 1576 , affg sub nom. Way v. Commission des libérations conditionnelles du Canada),2014 QCCS 4193. CONSIDERED: Gallone v. Canada (Attorney General), 2015 FC 608, [2015] F.C.J. No. 598 (QL); Laferrière v. Canada (Attorney General), 2015 FC612, [2015] F.C.J. No. 578 (QL); R. v. Gamble, (SCC), [1988] 2 S.C.R. 595, (1988), 45 C.C.C. (3d) 204; Jones etMaheux v. Gamache, (CSC), [1969] S.C.R. 119, (1968), 7 D.L.R. (3d) 316; “B” v.

Department of Manpower andImmigration, [1975] F.C. 602 (T.D.); Dyson v. Attorney-General, [1911] 1 K.B. 410 (C.A.); Thorson v. Attorney General of Canada, (SCC), [1975] 1 S.C.R. 138, (1974), 43 D.L.R. (3d) 1; Canada (Attorney General) v. Law Society of British Columbia, (SCC), [1982] 2 S.C.R. 307, (1982), 137 D.L.R. (3d) 1; Strickland v. Canada (Attorney General), 2015 SCC 37, [2015]2 S.C.R. 713; Northern Telecom v. Communication Workers, (SCC), [1983] 1 S.C.R. 733, (1983), 147 D.L.R. (3d) 1; R.v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; Labatt Breweries of Canada Ltd. v.

Attorney General of Canada, (SCC),[1980] 1 S.C.R. 914, (1980), 110 D.L.R. (3d) 594; Corbiere v. Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R. 203, (1999), 173 D.L.R. (4th) 1; Egan v. Canada, (SCC), [1995] 2 S.C.R. 513, (1995), 124D.L.R. (4th) 609; Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433; R. v. Lloyd, 2016 SCC 13, [2016] 1S.C.R. 130; Board v. Board, (UK JCPC), [1919] A.C. 956 (P.C.); Roberts v. Canada, (SCC), [1989]1 S.C.R. 322, (1989), 57 D.L.R. (4th) 197; Edwards, Henrietta Muir v.

Attorney-General for Canada, (UK JCPC),[1930] A.C. 124 (P.C.); Attorney-General for Ontario v. Attorney-General for Canada, [1947] 1 D.L.R. 801, (P.C.);Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2S.C.R. 504; Eaton v. Brant County Board of Education, (SCC), [1997] 1 S.C.R. 241, (1997), 142 D.L.R. (4th) 385; R.v. Miller, (SCC), [1985] 2 S.C.R. 613, (1985), 52 O.R. (2d) 585; May v. Ferndale Institution, 2005 SCC 82, [2005] 3S.C.R. 809; Wolf v. The Queen, [1975] S.C.R. 107, (1974), (SCC), 47 D.L.R. (3d) 741; R. v.

Pete, ,104 B.C.A.C. 319; Young v. Young, (SCC), [1993] 4 S.C.R. 3, (1993), 108 D.L.R. (4th) 193; Association des parents del’école Rose-des-vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139; Mooring v. Canada (National ParoleBoard), (SCC), [1996] 1 S.C.R. 75, (1996), 132 D.L.R. (4th) 56. REFERRED TO: Blacksmith v. Canada (Attorney General), 2017 FC 605; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, (1989), 57 D.L.R. (4th) 231; MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010]1 S.C.R. 6; Singh v. Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177, (1985), 17 D.L.R. (4th) 422;Singh v. Canada (Minister of Citizenship and Immigration), (FCA), [1986] 3 F.C. 388, (1986), 29 D.L.R. (4th) 107(C.A.); Hassouna v. Canada (Citizenship and Immigration), 2017 FC 473, [2017] 4 F.C.R. 555; Operation Dismantle v. The Queen, (SCC), [1985] 1 S.C.R. 441, (1985), 18 D.L.R. (4th) 481; Solosky v.

The Queen, (SCC), [1980] 1 S.C.R.821, (1979), 105 D.L.R. (3d) 745; Felipa v. Canada (Citizenship and Immigration), 2010 FC 89, [2011] 1 F.C.R. 365, revd 2011 FCA272, [2012] 1 F.C.R. 3; Liebmann v. Canada (Minister of National Defence), (FC), [1994] 2 F.C. 3, (1993), 69 F.T.R.81 (T.D.); Del Zotto v. Canada, (FCA), [1997] 3 F.C. 40, (1997), 147 D.L.R. (4th) 457 (C.A.), revd on other grounds (SCC), [1999] 1 S.C.R. 3, (1999), 169 D.L.R. (4th) 130; Canada (Attorney General) v. McArthur, 2010 SCC 63,[2010] 3 S.C.R. 626; Canada Labour Relations Board et al. v.

Paul L’Anglais Inc. et al., (SCC), [1983] 1 S.C.R. 147,(1983), 146 D.L.R. (3d) 202; Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585; Valente v. The Queen, (SCC), [1985] 2 S.C.R. 673, (1985), 52 O.R. (2d) 779; Three Rivers Boatman Limited v. Conseil Canadien des RelationsOuvrières et al., (CSC), [1969] S.C.R. 607, (1969), 12 D.L.R. (3d) 710; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, (1998), 161 D.L.R. (4th) 385; Séminaire de Chicoutimi v. La Cité de Chicoutimi, [1973] S.C.R.681, ; R. v.

Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, (1985), 60 A.R. 161;Douglas/Kwantlen Faculty Assn. v. Douglas College, (SCC), [1990] 3 S.C.R. 570, (1990), 77 D.L.R. (4th) 94;Commonwealth of Puerto Rico v. Hernandez, (SCC), [1975] 1 S.C.R. 228, (1973), 41 D.L.R. (3d) 549; Guindon v.Canada, 2015 SCC 41, [2015] 3 S.C.R. 3; Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561, (1979), 96D.L.R. (3d) 14; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), (SCC), [1989] 2S.C.R. 49, (1989), 61 D.L.R. (4th) 604; Friends of the Oldman River Society v.

Canada (Minister of Transport), (SCC), [1992] 1 S.C.R. 3, (1992), 88 D.L.R. (4th) 1; Reza v. Canada, (SCC), [1994] 2 S.C.R. 394, (1994), 116 D.L.R.(4th) 61; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 501; Laferrière c. Centre correctionnel communautaire Marcel-Caron, 2010 QCCS 1677 ; Laferrière c. Commission des libérations conditionnelles du Canada, 2013 QCCS 4228 ;Laferrière c Commission des libérations conditionnelles du Canada, 2013 QCCA 1081 ; Fording Coal Ltd. v. Vancouver PortAuthority, 2006 BCCA 204, 53 B.C.L.R. (4th) 278; Morguard Investments Ltd. v.

De Savoye, (SCC), [1990] 3 S.C.R.1077, (1990), 76 D.L.R. (4th) 256; Toronto Auer Light Co. v. Colling (1899), 31 O.R. 18, [1899] O.J. No. 65 (QL) (Ch.D.); Carter v.Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R.1101; RWDSU v. Dolphin Delivery Ltd., (SCC), [1986] 2 S.C.R. 573, (1986), 33 D.L.R. (4th) 174; Krieger v. Law Societyof Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372; Cosgrove v. Canadian Judicial Council, 2007 FCA 103, [2007] 4 F.C.R. 714, application

for leave to appeal to S.C.C. refused [2007] 3 S.C.R. x; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1S.C.R. 350; R. v. Gatza, 2016 ABPC 37 ; R. v. Bourdon, 2012 ONCA 256 , 110 O.R. (3d) 168; Regina v. Cadeddu;Regina v. Nunery (1982), (ON SC), 40 O.R. (2d) 128, 146 D.L.R. (3d) 629 (H.C.J.); Illes v. Kent Institution, 2001BCSC 1465, 160 C.C.C. (3d) 307; R. v. Swan (1983), (BC SC), 150 D.L.R. (3d) 626, 35 C.R. (3d) 135 (B.C.S.C.);Conroy and The Queen (Re) (1983), (ON SC), 42 O.R. (2d) 342, 5 C.C.C. (3d) 501 (H.C.J.); R. v.

Lowe (1983), (BC SC), 149 D.L.R. (3d) 732, 5 C.C.C. (3d) 535 (B.C.S.C.); Mitchell v. R., (SCC), [1976] 2 S.C.R. 570,(1975), 61 D.L.R. (3d) 77; Huynh v. Canada, (FCA), [1996] 2 F.C. 976, (1996), 134 D.L.R. (4th) 612 (C.A.); Ruby v.Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3; R. v. Lyons, (SCC), [1987] 2 S.C.R. 309, (1987), 44D.L.R. (4th) 193; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Little Sisters Book andArt Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120. AUTHORS CITED Canada. Correctional Service of Canada.

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APPLICATION for judicial review of a decision of the Parole Board of Canada maintaining the suspension of the applicant’s long-termsupervision order and recommending that a new information be laid under

section 753.3 of the Criminal Code. Application allowed inpart. APPEARANCES Nadia Golmier for applicant. Marc Ribeiro and Virginie Harvey for respondent. SOLICITORS OF RECORD Surprenant Magloé Golmier avocats, Montréal, for applicant. Deputy Attorney General of Canada for respondent. This is the English version of the reasons for judgment and judgment rendered by Martineau J.: I. Introduction [1] Under subsection 52(1) of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, AppendixII, No. 44], the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of theConstitution is, to the extent of the inconsistency, of no force or effect.

In this case, does the Federal Court have jurisdiction to rule onthe validity of subsections 140(1) and (2) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA), and, if it does,would it be appropriate to grant declaratory relief today in this case? [2] At issue is the extent of the obligations of the Parole Board of Canada (the Board) with respect to natural justice, the law and/orthe Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11(U.K.) [R.S.C., 1985, Appendix II, No. 44] (Charter), when, following the suspension of a long-term supervision order (LTSO), itdecides under subsection 135.1(6) of the CCRA to maintain the suspension of the LTSO and/or to recommend that an information be laidcharging the offender with an offence under

section 753.3 of the Criminal Code, R.S.C., 1985, c. C-46. [3] Subsection 140(1) of the CCRA stipulates that a hearing is mandatory in the cases listed in paragraphs (

a) to (

e) of subsection(1). However, according to subsection 140(2) of the CCRA, the Board has the discretion to hold a hearing in other cases, which includesa post-suspension hearing following the suspension of an LTSO (section 135.1 of the CCRA). [4] These provisions are reproduced below: Mandatory hearings 140

(1) The Board shall conduct the review of the case of an offender by way of a hearing, conducted in whichever of the two officiallanguages of Canada is requested by the offender, unless the offender waives the right to a hearing in writing or refuses to attend thehearing, in the following classes of cases: (

a) the first review for day parole pursuant to subsection 122(1), except in respect of an offender serving a sentence of less than twoyears; (

b) the first review for full parole under subsection 123(1) and subsequent reviews under subsection 123(5), (5.01) or (5.1);

(

c) a review conducted under

section 129 or subsection 130(1) or 131(1) or (1.1); (

d) a review following a cancellation of parole; and (

e) any review of a class specified in the regulations. Discretionary hearing

(2) The Board may elect to conduct a review of the case of an offender by way of a hearing in any case not referred to in subsection (1). [ 5 ] The applicant, Jimmy Bilodeau-Massé, is a long-term offender subject to an LTSO. In this case, the Board maintained the suspension of the LTSO and recommended that an information be laid charging the applicant with an offence under

section 753.3 of the Criminal Code . In addition, in exercising the discretion conferred upon it under subsection 140(2) of the CCRA , it determined that an oral hearing was not warranted in this case, hence this application for judicial review and declaratory relief. [ 6 ] The Attorney General of Canada is the respondent in this case. In accordance with

section 57 of the Federal Courts Act , R.S.C., 1985, c. F-7, a notice of constitutional question was duly served on the respondent, as well as on the attorney general of each province, though they decided not to participate in the hearing.

It is not disputed that subsection 91(27) of the Constitution Act, 1867 confers on Parliament exclusive jurisdiction over criminal law and procedure (except the constitution of courts of criminal jurisdiction), that the provisions of the CCRA and the Criminal Code on the supervision of long-term offenders in the community fall under federal jurisdiction, and that the legality of any decision by the Board may be reviewed by the Federal Court under sections 18 and 18.1 of the Federal Courts Act . [ 7 ] This Court heard the parties’ submissions on the merits concurrently with the application for judicial review and declaratory judgment of another long-term offender regarding a similar decision by the Board, raising the same questions of administrative and constitutional law (see Blacksmith v.

Canada (Attorney General) , 2017 FC 605 ). [ 8 ] At the hearing, counsel for the two applicants stated that the applicants were abandoning any claim regarding the violation of

section 9 of the Charter , which provides that “[e]veryone has the right not to be arbitrarily detained or imprisoned.” Nevertheless, counsel for the applicants argues that the lack of guarantee of a post-suspension hearing violates

section 7 of the Charter (constitutional question). For one, the suspension of the LTSO and the resulting reincarceration affect the offender’s residual liberty. Moreover, the principles of fundamental justice require that the offender be able, in all cases , to appear in person before the Board for a post-suspension hearing. The hearing must be held prior to the expiration of the statutory time limit of 90 days set out in

section 135.1 of the CCRA , unless the offender waives this right in writing or refuses to attend the hearing. In addition, the two applicants argue that the Board also breached procedural fairness, or otherwise rendered an unreasonable decision, by refusing to hold a post-suspension hearing, which warrants Court intervention. [ 9 ] Although the Federal Court has jurisdiction to decide the constitutional question and make a formal declaration of invalidity, the respondent defends the constitutionality of subsections 140(1) and (2) of the CCRA . The Board acted under the authority of the law.

The discretion to hold a hearing granted to the Board in subsection 140(2) of the CCRA does not violate

section 7 of the Charter : the offender’s freedom is not involved, and the discretion to hold a post-suspension hearing is not incompatible with the principles of fundamental justice. The Court must interpret the legislation in a manner that is consistent with these principles. A hearing is not necessarily required in all cases . Because the authority to hold a post-suspension hearing is not removed, subsections 140(1) and (2) of the CCRA do not violate

section 7 of the Charter. Additionally, any violation is justifiable under

section 1. Regardless, there was no breach of procedural fairness, and the impugned decision by the Board is reasonable in all regards. [ 10 ] The standard of correctness applies to the review of the constitutional question, to the determination of the legal scope of the rules of natural justice or procedural fairness, as well as to the question as to whether—given the particular facts of the case—the Board breached procedural fairness by maintaining the suspension of the LTSO and recommending that an information be laid charging the offender with an offence under

section 753.3 of the Criminal Code , without having held a hearing. At the same time, the standard of reasonableness applies to the review of the Board’s determinations regarding the case ( Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 ( Khosa ); Gallone v. Canada (Attorney General) , 2015 FC 608 , [2015] F.C.J. No. 598 (QL) ( Gallone ), at paragraph 7 ; Laferrière v. Canada (Attorney General) , 2015 FC 612 , [2015] F.C.J.

No. 578 (QL) ( Laferrière FC )). [ 11 ] In light of the particular facts of the case and the applicable federal statutory provisions, and having considered all of the parties’ submissions and the relevant case law, I am satisfied that the Federal Court has jurisdiction to decide the constitutional question. It is also appropriate to issue a declaratory judgment on the constitutionality of subsections 140(1) and (2) of the CCRA and clarifying the extent of the Board’s obligations under the principles of fundamental justice.

The immediate result of the declaratory judgment that follows these reasons will be to bind the parties to the case and the tribunal against which it is rendered. II. Background [ 12 ] The applicant is single and has no children. He is currently 24 years old. He has various cognitive limitations and the mental age of a child in elementary school. He has attention deficit hyperactivity disorder, conduct disorders, borderline personality disorder and a potential autism spectrum disorder.

He is unable, partially and permanently, to ensure the protection of his person, to exercise his civil rights and to administer his property. Since 2015, the applicant has been under the protection of the Public Curator of Quebec. [ 13 ] The applicant’s record shows persistent criminal behaviour since his criminal record began in 2008 and a violence problem characterized by a strong, immature and explosive personality. However, despite his intellectual disability, the applicant does not have any psychiatric pathology that could explain his violent behaviour.

The problem seems to be that when he gets bored or is facing a situation he feels is unfair, he tends to break the rules or demonstrate disruptive behaviour. Reintegration potential, accountability and motivation are all assessed as low. That being said, medication plays a key role in managing the risk the applicant poses to himself and society.

[ 14 ] On January 23, 2012, the applicant was charged with assault with a weapon and assault causing bodily harm against two staff members of the Institut universitaire en santé mentale de Québec. On January 22, 2012, he hit a nurse on the head twice with an iron bar while she was sitting at the station. He was also charged with uttering death threats the following day against another staff member and for failing to comply with an undertaking to be of good behaviour.

The applicant pleaded guilty to these criminal charges. [ 15 ] On February 25, 2013, the Court of Quebec ordered a pre-sentence psychiatric assessment as well as a dangerous or long-term offender assessment. The applicant was found to be responsible for his actions. On July 17, 2013, the Court of Quebec sentenced him to nine months in prison, in addition to the time already served on remand. At that time, he was declared a long-term offender. [ 16 ] The applicant is under the legal authority of the Correctional Service of Canada (Service) and is subject to an LTSO that will expire in 2019.

Specifically, the Board imposed on him supervision conditions it considered reasonable and necessary to protect society and facilitate his reintegration. The LTSO, which was amended a few times, stipulates that he must reside at the Martineau Community Correctional Centre (CCC), a specialized centre for offenders with mental health issues; participate in a treatment program to address his risk factors; and take medication as prescribed by a health practitioner.

He was released into the community on April 16, 2014. [ 17 ] The Service suspended the applicant’s community supervision multiple times as a result of various breaches of these conditions. Each time, he was reincarcerated at the Regional Mental Health Centre at Archambault Institution. [ 18 ] Although post-suspension interviews were conducted with Service representatives and the applicant’s case was referred to the Board three times, he appeared before the Board in person only once. This was in August 2015. On that occasion (the sixth suspension), the Board recommended that an information be laid under

section 753.3 of the Criminal Code . Charges for breach of LTSO were laid in September 2015. During the applicant’s appearance, his counsel requested a reassessment. He was declared fit to appear. In October 2015, the case was postponed, and the applicant was released on a promise to appear. He returned to the Martineau CCC on October 19, 2015, under a residency condition. [ 19 ] On October 31, 2015, the applicant’s LTSO was suspended a seventh time.

The applicant had stolen the medical identity cards of two other offenders and had demonstrated threatening or intimidating behaviour—actions that he later said he regretted. The case was referred to the Board, which agreed to moderate. On January 13, 2016, the Board conducted a paper review and decided to cancel the suspension of the LTSO, while formally advising the applicant that it was dissatisfied with his behaviour and expected the supervisors not to tolerate any further misconduct. Given the regret the applicant expressed, the Board did not recommend that additional charges be laid against him under

section 753.3 of the Criminal Code . [ 20 ] On March 30, 2016, the Service suspended the applicant’s supervision for the eighth time. The applicant had threatened a resident of the unit and had attempted to strangle another. He then fled from the unit. He was found several hours later. While fleeing, he hit and damaged a vehicle. [ 21 ] On April 14, 2016, the applicant was confronted with the facts alleged against him during a post-suspension interview conducted by an authorized Service representative.

The Service maintained the suspension and referred the case to the Board. [ 22 ] On April 22, 2016, the Service prepared an “Assessment for Decision” (Assessment), including a recommendation that an information be laid charging the applicant with an offence under

section 753.3 of the Criminal Code . The Assessment, which must be read in conjunction with the most recent correctional plan update and the applicant’s criminal profile, was shared with the applicant in late May 2016. [ 23 ] On June 5, 2016, counsel for the applicant submitted written representations to the Board, while requesting an in-person post- suspension hearing on the ground that the applicant [translation] “has limited intellectual abilities, and his situation raises serious questions about the appropriate medication and treatment for his condition”. Counsel also submitted the report prepared by Dr.

Pierre Gagné, Director of the Clinique médico-légale de l’Université de Sherbrooke, indicating that the applicant’s medication was not appropriate for his situation and therefore impeded his ability to comply with his LTSO conditions. [ 24 ] The request for a post-suspension hearing was based on two arguments: (a) Subsection 140(2) of the CCRA—which provides for a discretionary post-suspension hearing for offenders subject to an LTSO— violates sections 7 and 9 of the Charter (the Charter argument); and (

b) The hearing is all the more important in the applicant’s case in order to ensure procedural fairness, because he has limited intellectual abilities and his situation raises serious questions about the appropriate medication and treatment for his condition (the administrative law argument). [ 25 ] The Board considered the information in its possession to be [translation] “reliable and relevant” and enabled it to make an [translation] “informed decision.” With regard to the Charter and administrative law arguments, the Board said nothing in its June 7, 2016, decision except that it had [translation] “read all of the representations from [counsel for the applicant]”, but ultimately did not share her opinion because [translation] “[i]t finds that a hearing is not warranted”.

The Board noted that the specialists agreed that, despite his intellectual disability, the applicant had no psychiatric illness and was responsible for his actions. Examining his behaviour in terms of public safety and the protection of society, the Board maintained the suspension of the LTSO and recommended that a new information be laid under

section 753.3 of the Criminal Code , finding that no supervision program could adequately protect society against the applicant’s risk of recidivism and that, by all appearances, he had failed to comply with his supervision conditions. [ 26 ] That decision is the subject of this application. [ 27 ] On June 21, 2016, new criminal charges were brought against the applicant for breach of LTSO. [ 28 ] On November 10, 2016, the applicant pleaded guilty to those charges and received a concurrent sentence of 18 months in prison.

III. Mootness of certain questions raised or of certain remedies sought by the applicant [29] Recall that under subsection 18(1) of the Federal Courts Act, subject to

section 28, the Federal Court has exclusive originaljurisdiction (

a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grantdeclaratory relief, against any federal board, commission or other tribunal; and (

b) to hear and determine any application or otherproceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the AttorneyGeneral of Canada, to obtain relief against a federal board, commission or other tribunal.

In addition, subsections 18.1(3) and (4) of theFederal Courts Act authorize the Court to declare invalid or unlawful or quash a decision of a federal board, commission or other tribunaland, if applicable, to refer the matter back for determination in accordance with such directions as it considers to be appropriate—meaning that the Court may order that a hearing be held in cases of breach of natural justice or procedural fairness, and particularly ofviolation of the law. [30] Moreover, in accordance with the well-established principles on prerogative writs and other discretionary remedies, a court oflaw may refuse to hear an application or to decide a question that has become moot (Borowski v.

Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342). And, even when an unlawful act was committed and a dispute still exists between the parties,the appropriate remedy is left to the Court’s discretion. For example, the Federal Court may issue a declaration in lieu of any otherjudicial remedy (MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6 (MiningWatch Canada), atparagraph 43; Canada (Prime Minister) v.

Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, at paragraphs 2 and 46–47). [31] During the hearing before this Court, counsel for the applicant was confronted with the question as to whether this application forjudicial review had become moot—either partially or totally—following the filing of charges under

section 753.3 of the Criminal Codeand her client’s subsequent conviction. The questionable actions that resulted in the suspensions of the LTSO—including the one inspring 2016 that led to the impugned decision in this case—are not really at issue. [32] However, counsel for the applicant argues that her client continues to be subject to an LTSO, meaning that the problematicsituation alleged in this application for judicial review and declaratory relief is likely to recur more than once (for proof, one need onlylook at the number of suspensions of the LTSO in this case).

Furthermore, other offenders are in a similar situation, which is notably thecase for the applicant in the other case heard concurrently (Blacksmith v. Canada (Attorney General), 2017 FC 605 [cited above]). Thesuspensions of the LTSO are frequent, and the statutory time limit of 90 days for review is very short. In addition, the applicants make ita compelling question of law: because credibility issues are often at play before the Board, the principles of fundamental justiceprotected under

section 7 of the Charter require that an oral post-suspension hearing be held when an LTSO is suspended.

This is notfrivolous: Charter and/or administrative law arguments are serious and warrant acknowledgement and an adequate response by thisCourt. [33] Counsel for the respondent does not challenge this rhetoric that the offender must return to square one if this Court does notclarify the issue raised by the applicants in the meantime. [34] I agree with counsel. [35] Quashing the June 7, 2016 decision and referring the matter back to the Board for redetermination could no longer have anypractical or legal effect on what was already accomplished; the fact remains that criminal charges were laid and that the applicant wasfound guilty of committing the offence set out in

section 753.3 of the Criminal Code. However, the Court can still do something usefulby deciding the real issue in this case: is the offender automatically entitled to an oral hearing as in the cases referred to insubsection 140(1) of the CCRA? [36] The Charter and/or administrative law arguments were debated at length at the hearing, so, at first glance, it would seemappropriate to issue a declaratory judgment to clarify the question at issue.

More often than not—when it would serve no useful purposeto quash a decision or order the resumption of an administrative process—in exercising judicial discretion, a declaratory judgment is avalid alternative remedy to prevent the repetition of systemic administrative practices that violate the law (MiningWatch Canada, atparagraphs 50–52), or even the Charter or the Canadian Bill of Rights, R.S.C., 1985, Appendix III (Singh v.

Minister of Employment andImmigration, (SCC), [1985] 1 S.C.R. 177 (Singh), at paragraphs 76–79, 81–85 [pages 221–224 and 239–240); Singh v.Canada (Minister of Citizenship and Immigration), (FCA), [1986] 3 F.C. 388, at paragraphs 8–9 [pages 394–395]).For a recent example of a declaratory judgment of general application from the Federal Court affecting an entire group of people whochallenged the constitutionality and/or validity of certain provisions of the Citizenship Act, R.S.C., 1985, c. C-29, as amended by theStrengthening Canadian Citizenship Act, S.C. 2014, c. 22, see: Hassouna v.

Canada (Citizenship and Immigration), 2017 FC 473,[2017] 4 F.C.R. 555. In addition to prohibiting the Minister of Citizenship and Immigration from applying subsections 10(3) and (4) ofthe Citizenship Act, R.S.C., 1985, c. C-29, as amended, against the applicants, because those subsections are incompatible with theCanadian Bill of Rights, the Court declared subsections 10(1), (3) and (4) to be inoperative, because they violate paragraph 2(

e) of theCanadian Bill of Rights in a manner that cannot be avoided by

interpretation. In so doing, the Court stayed judgment for a period of60 days or for any other period that the Court may authorize at the request of one of the parties. [37] However, a declaration of unconstitutionality is a discretionary remedy (Operation Dismantle v. The Queen, (SCC), [1985] 1 S.C.R. 441 (Operation Dismantle), at page 481, citing Solosky v. The Queen, (SCC), [1980] 1 S.C.R. 821(Solosky)) and can be “an effective and flexible remedy for the settlement of real disputes” (R. v. Gamble, (SCC), [1988]2 S.C.R. 595 (Gamble), at page 649).

Therefore, a court can properly issue a declaratory remedy so long as it has the jurisdiction over theissue at bar, the question before the court is real and not theoretical, and the person raising it has a real interest to raise it (Canada (PrimeMinister) v. Khadr, 2010 SCC 3 (Khadr) [cited above], at paragraph 46). This Court must first ascertain that it has jurisdiction over theissue, and, if it does, be satisfied that its declaratory judgment may have a useful effect on the application of the CCRA when the Servicerefers a case to the Board following the suspension of an LTSO. IV.

Federal Court’s jurisdiction to grant declaratory relief with respect to a constitutional and administrative issue [38] Firstly, I am satisfied that this Court has jurisdiction to render a declaratory judgment on the constitutional validity, applicability

or operability of subsections 140(1) and (2) of the CCRA, as well as on the extent of the Board’s obligations under the principles offundamental justice and/or administrative law. A. Words conferring jurisdiction [39] The Federal Court, a successor to the Exchequer Court of Canada, established in 1875, was maintained in 1970 as an “additionalcourt of law, equity and admiralty in and for Canada, for the better administration of the laws of Canada” (section 4 of the FederalCourts Act).

With the status of “a superior court of record having civil and criminal jurisdiction” (section 4 of the Federal Courts Act),the Federal Court may grant declaratory relief against any federal board, commission or other tribunal (subsection 18(1) of the FederalCourts Act) or against the Crown, including an officer, servant or agent of the Crown for anything done or omitted to be done in theperformance of the duties of that person (section 17 of the Federal Courts Act).

However, to better understand the genesis of the FederalCourt’s jurisdiction, it is appropriate to review the background, without repeating everything that might have been said on this topic inprevious decisions (for example Felipa v.

Canada (Citizenship and Immigration), 2010 FC 89, [2011] 1 F.C.R. 365 (Felipa FC),reversed by 2011 FCA 272, [2012] 1 F.C.R. 3, though for reasons unrelated to the historical analysis of the Court’s jurisdiction). [40] In 1875, the legislation creating the Exchequer Court gave it concurrent original jurisdiction in “any matter which might inEngland be the subject of a suit or action in the Court of Exchequer on its revenue side against the Crown”, while the procedure was inprinciple “regulated by the practice and procedure of Her Majesty’s Court of Exchequer at Westminster” (see sections 58 and 61 of TheSupreme and Exchequer Court Act, S.C. 1875, c. 11).

At that time, in England, the Court of Exchequer was a high court (Supreme Courtof Judicature Act, 1873 (U.K.), 36 & 37 Vict., c. 66, sections 3, 4).

While the Exchequer Court’s jurisdiction was originally limited torevenue-related actions against the federal government, over the years, it gradually extended to actions against the Crown, in addition toadmiralty matters, suits between citizens regarding industrial property (now intellectual property), and tax, citizenship and railway cases. [41] Long before the Federal Court was granted statutory jurisdiction in 1970 to review the legality of decisions by a federal board,commission or other tribunal (section 18 of the Federal Courts Act), aside from the petition of right procedure, it was possible to obtain adeclaratory judgment from the Exchequer Court as additional relief against the Crown, by bringing an ordinary action against theAttorney General of Canada.

For example, in Jones et Maheux v. Gamache, (CSC), [1969] S.C.R. 119 (Jones etMaheux), the Supreme Court of Canada ruled that the Exchequer Court had jurisdiction to issue a declaration of nullity of the GeneralBy-laws of the Quebec Pilotage Authority establishing classes of pilots—the pilotage authority for the district of Quebec being theMinister of Transport. In his action, the plaintiff said that important and prejudicial restrictions in the exercise of his profession wereinflicted upon him as a direct consequence of the application of the invalid by-laws.

Ultimately, the Supreme Court dismissed withoutcosts the action against the individual defendants, but, at the same time, allowed the plaintiff’s action against the Minister of Transport as“officer of the Crown for anything done or omitted to be done in the performance of his duty as such officer” (paragraph 29(

c) of theExchequer Court Act, R.S.C. 1952, c. 98). [42] The Supreme Court’s conclusion in 1968 in Jones et Maheux is unsurprising and is consistent with a long line of case law.Initially, the declaratory judgment was a discretionary remedy that could be granted in England by the courts of equity, long before theadoption in 1850 of the Court of Chancery (England) Act, 1850 (U.K.), 13 & 14 Vict., c. 35 and in 1852 of the Court of ChanceryProcedure Act, 1852 (U.K.), 15 & 16 Vict., c. 86, as well as the clarifications made in 1883 by the rules committee established under theSupreme Court of Judicature Act, 1873 (U.K.), 36 & 37 Vict., c. 66, on the declaratory authority of the High Court of Justice.

The Courtof Exchequer in England also had equitable jurisdiction to issue declaratory judgments against the Crown (Lazar Sarna, The Law ofDeclaratory Judgments, 4th ed. Toronto: Thomson Carswell, 2016 (Sarna), at pages 9–10 and 24–25). [43] That being said, it is important not to confuse the declaratory jurisdiction of the courts of equity with that of the superior courts inprerogative writs.

This important distinction was highlighted in 1975 by Justice Addy, who explained the following in “B” v.Department of Manpower and Immigration, [1975] F.C. 602 (T.D.), at pages 607–608: At common law, the prerogative writs of prohibition, certiorari and mandamus (i.e., the old prerogative writ of mandamus as opposed toequitable mandamus to enforce a legal right or as contrasted with the equitable mandatory order or injunction) were granted exclusivelyby the common law Courts of the King’s or Queen’s Bench and constituted a class of process by which inferior bodies, including thosewhich are an emanation of the Crown, were answerable to the controlling jurisdiction of superior Courts.

The proceedings, leading to theissue of such prerogative writs, could not be instituted by ordinary action for the simple reason that the Courts and the judicial bodies,who were subject to such process being used against them, were not liable to be sued; the only persons liable to be sued were individualsand corporations. Therefore, the proceedings for prerogative writs had to be instituted by special application to the Court by way ofmotion. (See Rich v.

Melancthon Board of Health ((1912) (ON SCDC), 26 O.L.R. 48) and Hollinger Bus Lines Ltd. v.Ontario Labour Relations Board ( (ON CA), [1952] O.R. 366 at 379).) On the other hand, relief by way of injunction, declaratory judgment, mandatory injunction or equitable mandatory order were exclusiveequitable remedies and the proceedings were instituted in the Court of Chancery by means of a bill in equity. The Exchequer Court inEngland originally possessed also the equitable jurisdiction to issue declaratory judgments against the Crown.

A true distinction between these remedies became obscured to some extent when the Courts of equity and of common law were fusedand, in more recent years, the distinction became further obscured because in most jurisdictions all of these remedies, whatever mayhave been their origin, are now enforceable in the same manner, that is, by way of direct order of the Court.

Furthermore, where theproceedings for the prerogative common law remedies, for the reasons previously stated, could be initiated only by special application tothe Court, in certain Courts today such as the Federal Court of Canada (see Rule 603), the proceedings may now be instituted by way ofa statement of claim.

But neither the fact that all the above-mentioned remedies may now be obtained from the same forum, nor the fact that the relief may beinitiated by means of the same type of proceedings, nor the fact that the method of enforcing all of these remedies (by Court order) isidentical, in any way changes or alters their basic nature or purpose, and it is still the law that where prohibition or certiorari lies neitherinjunction nor any other equitable remedy such as specific performance, mandatory injunction or equitable mandamus will lie and theconverse is equally true. (See Hollinger Bus, supra, and Howe Sound Company v.

International Union of Mine, Mill and Smelter

Workers (Canada), Local 663 ( (SCC), [1962] S.C.R. 318).) [My emphasis.] [44] Furthermore, declaratory action has been particularly useful in cases where the validity of a procedure or the legality of an actionundertaken by the Crown was challenged by a subject. This method was confirmed in Dyson v. Attorney-General, [1911] 1 K.B. 410(C.A.) (Dyson), where the Court of Appeal of England declared that a tax notice sent to the plaintiff (and to eight million other people)was not authorized by law.

In that case, the defendant was the Attorney General, not the Crown, because for centuries before the EnglishCourt of Chancery, and particularly before a court of equity, it was the Attorney General who defended the interests of the Crown (Joneset Maheux, at pages 129–131, citing Dyson). As could be expected, the declaratory action against the Crown became commonplace inCanada, Australia and New Zealand (Liebmann v. Canada (Minister of National Defence), (FC), [1994] 2 F.C. 3(T.D.).

In 1970, in transferring the supervisory jurisdiction over federal boards, commissions or other tribunals, Parliament took care tospecify in

section 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, that in addition to the prerogative writs mentioned in theTrial Division, the Federal Court could render a declaratory judgment. The declaratory powers of a court of equity and a superior courtwere then concentrated in one federal court. [45] Incidentally, apart from questions of interest or mootness, the Supreme Court of Canada had already recognized before thepatriation of the Constitution, in Thorson v.

Attorney General of Canada, (SCC), [1975] 1 S.C.R. 138, at pages 157–159,the right of taxpayers to invoke the interposition of a court of equity to challenge the constitutionality of legislation involving expenditureof public money where no other means of challenge was open. This continued with the coming into force of the Charter. For example,following the bringing of a declaratory action before the Trial Division, the Federal Court of Appeal allowed the appeal of a taxpayer,who had been unsuccessful at trial, who was challenging the constitutionality of

section 231.4 of the Income Tax Act, R.S.C., 1985 (5thSupp.), c. 1, and summonses issued by tax authorities pursuant to that provision. The Federal Court of Appeal ruled that they wereinoperative under subsection 52(1) of the Constitution Act, 1982 (Del Zotto v. Canada, (FCA), [1997] 3 F.C. 40(C.A.), revd on other grounds, (SCC), [1999] 1 S.C.R. 3). [46] In Canada (Attorney General) v.

Law Society of British Columbia, (SCC), [1982] 2 S.C.R. 307 (Jabour), withregard to the declaratory action, the Supreme Court noted that “[t]his form of action takes on much greater significance in a federalsystem where it has been found to be efficient as a means of challenging the constitutionality of legislation” (page 323) (my emphasis).While avoiding saying that the Federal Court did not have jurisdiction under

section 17 of the Federal Courts Act to make a “Dyson”declaration (page 326), the Supreme Court took a pragmatic approach: the jurisdiction found in

section 17 does not remove “[t]hejurisdiction of superior courts, and indeed other courts in the provinces, to review the constitutionality of federal statutes” (page 327) (myemphasis). [47] In Canadian Transit Company v. Windsor (City), 2015 FCA 88, [2016] 1 F.C.R. 265 (Windsor FCA), Justice Stratas explains inparagraphs 56 to 58 how the Exchequer Court was able, since its establishment in 1875, like other Canadian courts, to review the validityof legislation for various proceedings against the Crown: In 1875, the Exchequer Court of Canada was created.

Like all courts, it had to act according to law, interpreting and applying the law. Atthe time of the Exchequer Court’s birth, one law on the books was the Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict. c. 63.Under

section 2 of that Act, all Canadian courts, including the Exchequer Court, had to declare “void and inoperative” any federal orprovincial laws inconsistent with those of the Parliament of the United Kingdom, including the British North America Act, 1867 [30 & 31Vict., c. 3 (U.K.) [R.S.C., 1985, Appendix II, No. 5]]: see also the discussion in Re Manitoba Language Rights, (SCC),[1985] 1 S.C.R. 721, at page 746.

The Exchequer Court recognized this power and understood that in appropriate cases it could declineto apply legislation that conflicted with a law of the Parliament of the United Kingdom: see, e.g., Algoma Central Railway Co. v. Canada(1901), (CA EXC), 7 Ex. C.R. 239, at pages 254–255, revd on other grounds (1902), (SCC), 32 S.C.R.277, affd [1903] A.C. 478 (P.C.). Even before the Exchequer Court came into existence, other Canadian courts regularly exercised thepower to declare legislation invalid or inoperative: see, e.g., The Queen v. Chandler (1868), 2 Cart. 421 (N.B.S.C.); Pope v.

Griffith(1872), 2 Cart. 291 (Que. Q.B.); Ex p. Dansereau (1875), 2 Cart. 165 (Que. Q.B.), at page 190; L’Union St. Jacques v. Belisle (1872), 1Cart. 72 (Que. Q.B.), revd (1874), L.R. 6 P.C. (P.C.). Thus, from the very outset, all Canadian courts, including the Exchequer Court,could measure legislation up against laws of the Parliament of the United Kingdom, including the British North America Act, 1867, anddetermine whether they were invalid or inoperative.

From 1875 to 1982, the doctrines of paramountcy and interjurisdictional immunity developed as part of the jurisprudence under sections91 and 92 of the British North America Act, 1867. For example, as early as 1895, the doctrine of paramountcy was described as being“necessarily implied in our constitutional act”, one that had to be followed under the Colonial Laws Validity Act, 1865: Huson v.Township of South Norwich (1895), 1895 CanLII 1 (SCC), 24 S.C.R. 145, at page 149. These constitutional doctrines became part of thelaw that all Canadian courts, including the Exchequer Court, were bound to apply.

And so the Exchequer Court did. In one case, it found that provincial water rights legislation, the Water Clauses Consolidation Act,1897, R.S.B.C., c. 190, could not apply to lands owned by the federal Crown that fell under exclusive federal jurisdiction undersubsection 91(1A) of the Constitution Act, 1867: Burrard Power Co. Limited et al. v. The King (1909), (CA EXC), 12Ex. C.R. 295, affd (SCC), [1910] 43 S.C.R. 27, affd [1911] A.C. 87 (P.C.).

In another case, it found that federallegislation, The Soldier Settlement Act, 1919, S.C. 1919, c. 71, was intra vires the federal Parliament and if it conflicted with provinciallegislation, it would prevail: The King v. Powers, (CA EXC), [1923] Ex. C.R. 131, at pages 133–134. [48] In this case, the nexus between the Federal Court and the constitutional issue here arising is obviously the judicial reviewproceeding under

section 18 of the Federal Courts Act against the decision by the Board, which in turn arises from the valid LTSOsuspension proceedings clearly commenced by the Service pursuant to the CCRA. Devoid of any artifice, this is what enables this Courtto intervene in the resolution of the very real dispute between the parties today. And, at the risk of repeating myself, the Federal Court’sjurisdiction to grant declaratory relief against the Crown in an action (subsection 17(1) and definition of “relief” in

section 2 of theFederal Courts Act), or against any federal board, commission or other tribunal in an application for judicial review (section 18 of theFederal Courts Act), seems indisputable, unless that jurisdiction is otherwise assigned to the Federal Court of Appeal (subsections 28(1)and (3) of the Federal Courts Act).

[49] With regard to the judicial review of a Board decision on administrative law grounds, the Federal Court has exclusive originaljurisdiction (Strickland v. Canada (Attorney General), 2015 SCC 37, [2015] 2 S.C.R. 713 (Strickland), at paragraphs 63–64, citingCanada (Attorney General) v. McArthur, 2010 SCC 63, [2010] 3 S.C.R. 626, at paragraphs 2 and 17, and Canada Labour RelationsBoard et al. v.

Paul L’Anglais Inc. et al., (SCC), [1983] 1 S.C.R. 147 (Paul L’Anglais), at pages 153–154 and 162).Therefore, there is nothing in the law preventing the Federal Court from deciding any constitutional question that could incidentally beraised in this case. Indeed, the case has already been heard: it is not a question today of granting the Federal Court exclusive jurisdictionto administer the “laws of Canada” when the validity or applicability of

an Act of the Parliament of Canada is disputed by an interestedparty. Instead, it is a matter of concurrent jurisdiction. [50] The Supreme Court also specified the following in Northern Telecom v.

Communication Workers, (SCC), [1983]1 S.C.R. 733 (Northern Telecom), at page 741: It is inherent in a federal system such as that established under the Constitution Act, that the courts will be the authority in the communityto control the limits of the respective sovereignties of the two plenary governments, as well as to police agencies within each of thesespheres to ensure their operations remain within their statutory boundaries. Both duties of course fall upon the courts when acting withintheir own proper jurisdiction. [My emphasis.] [51] A final determination has already been made: In spite of

section 18 of the Federal Courts Act, the provincial superior courts haveconcurrent jurisdiction with the Federal Court when a plaintiff claiming damages against the Crown needs to attack a law or order by afederal board, commission or other tribunal to establish their cause of action, and adjudication of that allegation is a necessary step indisposing of the claim for relief against the Crown (Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, atparagraphs 6, 67, 75 and 80). Furthermore,

section 18 of the Federal Courts Act does not remove the power of provincial superior courtsto grant traditional administrative law remedies for reasons directly related to the division of powers (Paul L’Anglais, at pages 152–153). [52] It could have ended there. However, questions of jurisdiction are compelling. To avoid a ping-pong effect, it is in the interests ofjustice that the Federal Court’s jurisdiction and powers be clear to all parties, the final adjudicator being the Supreme Court. B.

The Supreme Court’s obiter dictum in Windsor [53] Although “[t]he notion that each phrase in a judgment of [the Supreme] Court should be treated as if enacted in a statute is notsupported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience” (R. v.Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 [at paragraph 57]), this Court nevertheless raised, on its own initiative, the question of theFederal Court’s jurisdiction to render a declaratory judgment on a constitutional issue.

This Court also considered the respectivepositions of the parties in the case on the legal significance, if any, of the Supreme Court of Canada’s general comments in Windsor(City) v.

Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617 (Windsor SCC), in response to what the Federal Court of Appealwrote on this subject in its judgment and which was already discussed above. [54] The issue in Windsor was related to the application of a municipal by-law to a company operating a federal undertaking.Specifically, the issue was to determine whether the three branches of the test established by the Supreme Court of Canada in ITO-Int’lTerminal Operators v.

Miida Electronics, (SCC), [1986] 1 S.C.R. 752 (ITO) had been met: (1) a statute grantsjurisdiction to the Federal Court, (2) federal law nourishes the grant of jurisdiction and is essential to the disposition of the case, and (3)that federal law is constitutionally valid. The Canadian Transit Company (Canadian Transit), incorporated by a special Act of Parliament,was seeking declaratory relief under paragraph 23(

c) of the Federal Courts Act against the city of Windsor (Windsor). Windsor hadissued over 100 repair orders against 114 properties purchased between 2004 and 2013 as part of a project to expand the AmbassadorBridge. Canadian Transit refused to comply, arguing that the bridge facilities are federal undertakings to which municipal by-laws do notapply. Canadian Transit wanted to obtain a Court declaration that the bridge was to be considered a “federal undertaking” and thereforecould not be subject to municipal by-laws.

Windsor responded by bringing a motion to strike the application for declaratory relief on theground that the Property Standards Committee was already dealing with the repair orders, while the Ontario Superior Court of Justicewas hearing several appeals by the two parties regarding the demolition orders.

The Attorney General of Canada was not the respondent,nor did the case involve the interests of the Crown or the decision of a federal board, commission or other tribunal. [55] The majority of the Supreme Court decided that the Federal Court clearly lacked jurisdiction to hear the application fordeclaratory relief. Therefore, the trial judge did not err in striking the notice of application, and the Federal Court of Appeal ought not tohave intervened (Windsor SCC, at paragraph 72).

Justices Moldaver and Brown, who were dissenting, were satisfied that paragraph 23(c)of the Federal Courts Act provided the required statutory grant of jurisdiction, and that federal law was essential to the disposition of thecase. However, the two dissenting judges would have remitted the matter to the Federal Court to determine whether it should stay theproceedings pursuant to

section 50 of the Federal Courts Act to allow the matter to be litigated in the Ontario Superior Court of Justice(Windsor SCC, at paragraphs 73 and 119, citing Strickland, at paragraphs 37–38). Justice Abella, who was also dissenting, found thateven though the Federal Court has concurrent jurisdiction with the Ontario Superior Court of Justice, it should not exercise it (WindsorSCC, at paragraphs 122–131). [56] While it is already established that the Federal Court can make findings of constitutionality at first instance in a case where it hasjurisdiction under

an Act of Parliament (section 26 of the Federal Courts Act), and the Federal Court of Appeal can do the same in anappeal from a judgment by the Federal Court (section 27 of the Federal Courts Act), the Supreme Court nevertheless seems to questionthe existence of the Federal Courts’ plenary power to issue a formal declaration of invalidity as sought today by the applicant in hisapplication for judicial review and his notice of constitutional question. [57] Paragraphs 70 and 71 of Justice Karakatsanis’ reasons in Windsor SCC read as follows: Since the ITO [ITO-Int’l Terminal Operators v.

Miida Electronics, (SCC), [1986] 1 S.C.R. 752 (ITO)] test is not met, itis also unnecessary to consider the Federal Court of Appeal’s holding that the Federal Court has the remedial power to declare legislationto be constitutionally invalid, inapplicable or inoperative. I decline to comment on this issue, except to say this. There is an importantdistinction between the power to make a constitutional finding which binds only the parties to the proceeding and the power to make a

formal constitutional declaration which applies generally and which effectively removes a law from the statute books (see, e.g., R. v.Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 15; Douglas/Kwantlen Faculty Assn. v. Douglas College, (SCC),[1990] 3 S.C.R. 570, at p. 592; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295, at p. 316). The Federal Court clearly has the power, when the ITO test is met, to make findings of constitutionality and to give no force or effect in aparticular proceeding to a law it finds to be unconstitutional.

The Federal Court of Appeal in this case appears to have held that theFederal Court also has the power to make formal, generally binding constitutional declarations.

My silence on this point should not betaken as tacit approval of the Federal Court of Appeal’s analysis or conclusion. [My emphasis.] [58] These general comments are found at the very end of Justice Karakatsanis’ reasons, suggesting they are of high importance.However, here, the Supreme Court’s “silence” “should not be taken as tacit approval of the Federal Court of Appeal’s analysis orconclusion.” The Supreme Court is therefore sending a message to the Federal Courts and all readers of Windsor SCC, without formallysetting aside or allowing the comments in paragraphs 47 to 70 regarding the opinion of Justice Stratas in Windsor FCA.

It is anobligatory silence, an aside that encourages reflection and opens the debate on the Federal Court’s remedial power to declare legislationto be constitutionally invalid, inapplicable or inoperative. Clearly, this is a significant challenge. [59] Because the doxa—whose precedential value seems to be disputed today—is the Federal Court of Appeal’s affirmation inWindsor FCA, at paragraph 64: “the ability of the [Federal Courts] to use

section 52 of the Constitution Act, 1982 where the ITO—Int’lTerminal Operators test is met is undoubted” (my emphasis). However, the Federal Court of Appeal is not alone in saying this.Generally speaking, parties and litigants have not really disputed the ability of the Federal Court (the Federal Courts since 2003) to issuea formal declaration of invalidity since the Constitution Act, 1982 came into force. [60] To use a metaphor, this Court is now facing a truly Shakespearean dilemma. To be or not to be a superior court: that is thequestion.

From an existential standpoint, this problem ultimately affects the social self and the jurisdiction of this federal court, unique inCanada. It is also a compelling question. Failing to recognize today the ability to use

section 52 of the Constitution Act, 1982—when theITO test is met—is likely to cause major inconveniences for litigants who come before the Federal Court seeking relief, and seriousproblems with judicial control above and below, considering that, in the case of a material error, a court of appeal can not only render thejudgment that should have been rendered by the trial Judge but also refer the case back to them for redetermination if the evidence in therecord is insufficient or needs to be supplemented. However, we must not forget that in all Charter cases, the issue of justification of theinfringement of the protected right, according to the

section 1 test, very often requires a factual demonstration from the attorneys general. [61] The problem, as the Attorney General of Canada explains in his additional submissions, is that the Supreme Court is itself a courtcreated under

section 101 of the Constitution Act, 1867. Recall that in 1875, the Supreme Court was constituted and established “in andfor the Dominion of Canada [as] a Court of Common Law and Equity” and which “shall have, hold, and exercise an appellate civil andcriminal jurisdiction within and throughout the Dominion of Canada” (sections 1 and 15 of the Supreme and Exchequer Court Act). Itwas maintained as a “court of law and equity … as a general court of appeal for Canada, and as an additional court for the betteradministration of the laws of Canada” (section 3 of the Supreme Court Act, R.S.C., 1985, c. S-26).

In addition, the appellate powers ofthe Supreme Court are limited by federal law in that it must “give the judgment and award the process or other proceedings that the courtwhose decision is appealed against should have given or awarded” (section 45 of the Supreme Court Act). In other words, its ownjurisdiction depends on that of the court appealed against. [62] However, as the Attorney General of Canada points out, a number of constitutional challenges to federal legislation, initiated inFederal Court with no application other than declaratory, have been appealed all the way to the Supreme Court of Canada.

It is revealingto note that the Supreme Court then ruled on the constitutionality of the provisions on the basis that it had the required jurisdiction.Specifically, in Labatt Breweries of Canada Ltd. v. Attorney General of Canada, (SCC), [1980] 1 S.C.R. 914, theSupreme Court rendered a judgment declaring unconstitutional provisions of the Food and Drugs Act, R.S.C 1970, c. F-27, with respectto the division of powers. In Corbiere v. Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R.203, the Supreme Court rendered a judgment declaring a provision of the Indian Act, R.S.C., 1985, c.

I-5 unconstitutional under theCharter. The declaration of unconstitutionality was suspended for a certain period, though the Supreme Court left no doubt that thedeclaration would apply to all after the period of suspension expired (see pages 226–227 [paragraphs 23–24] for the majority; pages 284–285 [paragraphs 118–121] for the minority). In Egan v. Canada, (SCC), [1995] 2 S.C.R. 513, the majority of theSupreme Court rendered a judgment declaring a provision

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