BEN MCBEATH Applicant v. ATTORNEY, 2015 FC 830

Date: 20150707 Docket: T-2417-14 Citation: 2015 FC 830 Ottawa, Ontario, July 7, 2015 PRESENT: The Honourable Mr. Justice Locke BETWEEN: BEN MCBEATH Applicant and ATTORNEY GENERAL OF CANADA Respondent JUDGMENT AND REASONS I. Background [ 1 ] This is a judicial review of the October 27, 2014 decision of the Correctional Service of Canada (CSC) not to reverse the vacancy of the applicant’s employment at CSC and not to reinstate him in his position as Chief of Finance of the Matsqui Institution following the reduction of his criminal sentence on July 15, 2014. [ 2 ] In 2011, the applicant pleaded guilty to: (

i) one count of abduction of a child under 16 under

section 280 of the Criminal Code , RSC 1985, c C-46 [the Criminal Code ], (ii) two counts of assault causing bodily harm (to his wife) under

section 267 (

b) of the Criminal Code , and (iii) one count of being unlawfully in a dwelling house contrary to

section 349 of the Criminal Code . The applicant was sentenced to 38 months of imprisonment. With credit on a 1:1 basis for eight months’ pre-trial custody, the remaining time in his sentence was 30 months. [ 3 ] Subsection 750(1) of the Criminal Code provides as follows: Public office vacated for conviction Vacance 750.

(1) Where a person is convicted of an indictable offence for which the person is sentenced to imprisonment for two years or more and holds, at the time that person is convicted, an office under the Crown or other public employment, the office or employment forthwith becomes vacant. 750.

(1) Tout emploi public, notamment une fonction relevant de la Couronne, devient vacant dès que son titulaire a été déclaré coupable d’un acte criminel et condamné en conséquence à un emprisonnement de deux ans ou plus. [ 4 ] The applicant was accordingly advised that, by operation of this provision, his employment with CSC had been terminated. [ 5 ] The Court of Appeal for British Columbia subsequently reduced the applicant’s sentence and increased his credit for pre- trial custody: R v McBeath , 2014 BCCA 305 .

Specifically, the sentence was reduced from a total of 38 months to 36 months less one day, and his credit for pre-trial custody was increased to from eight months to 12 months, representing an increased ratio of 1.5:1 on the basis of R v Summers , 2014 SCC 26 . The applicant argued then, and argues now, that the reduced sentence and increased credit for pre- trial custody takes him outside the scope of subsection 750(1) of the Criminal Code because his remaining sentence to be served was less than two years. [ 6 ] On August 5, 2014, the applicant’s union representative informed CSC of the reduced sentence.

By a letter dated October 27, 2014, CSC informed that applicant that it did not consider that the reduction of the applicant’s sentence rendered subsection 750(1) of the Criminal Code inapplicable. In this letter, CSC noted that though the applicant’s sentence had been reduced following an appeal, the applicant’s conviction had not been set aside. Accordingly, subsection 750(6) of the Criminal Code , which provides that “[w]here a conviction is set aside by competent authority, any disability imposed by this

section is removed” , was not applicable to the applicant’s situation. II. Questions [ 7 ] The present matter raises three questions: 1 . Does the letter dated October 27, 2014, constitute a decision within the meaning of

section 18.1 of the Federal Courts Act , RSC 1985, c F-7 [the Act ] such that it can be subject to judicial review? 2 . Did CSC err in interpreting and applying

section 750 of the Criminal Code ?

3. Did CSC breach the principles of procedural fairness? [8] Because of my conclusion on the second question, I need not consider the other two. III. Analysis [9] The parties agree that the question as to whether CSC erred in interpreting and applying

section 750 of the Criminal Codeshould be reviewed under the standard of correctness. I agree with the applicant that the jurisprudence confirms that criminal lawquestions should be determined under the correctness standard due to the importance of consistency in the

interpretation of the CriminalCode: Edmond v Canada (Citizenship and Immigration), 2012 FC 674 at para 7; Allen v Alberta (Law Enforcement Review Board), 2013ABCA 187 at paras 13-14. [10] I agree with the applicant that the dominant approach to statutory

interpretation is established in Rizzo & Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27, in which the Court stated as follows at para 21: […] Elmer Driedger in Construction of Statutes (2nd ed. 1983) best encapsulates the approach upon which I prefer to rely. He recognizesthat statutory

interpretation cannot be founded on the wording of the legislation alone. At p. 87 he states: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [11] I also agree with the applicant’s argument that there is a presumption that Parliament does not intend to produce absurdresults. [12] The question that this Court must answer is whether the words “sentenced to imprisonment for two years or more” undersubsection 750(1) of the Criminal Code refers to the sentence after credit for pre-sentence custody, or the total punishment (includingpre-sentence custody). [13] Subsections 719(1), (3) and (4) of the Criminal Code provide: Commencement of sentence Début de la peine 719.

(1) A sentence commences when it isimposed, except where a relevant enactmentotherwise provides. 719.

(1) La peine commence au moment oùelle est infligée, sauf lorsque le textelégislatif applicable y pourvoit de façondifférente. Determination of sentence Infliction de la peine

(3) In determining the sentence to be imposedon a person convicted of an offence, a courtmay take into account any time spent incustody by the person as a result of theoffence but the court shall limit any credit forthat time to a maximum of one day for eachday spent in custody.

(3) Pour fixer la peine à infliger à unepersonne déclarée coupable d’une infraction,le tribunal peut prendre en compte toutepériode que la personne a passée sous gardepar suite de l’infraction; il doit, le caséchéant, restreindre le temps alloué pour cettepériode à un maximum d’un jour pour chaquejour passé sous garde. When time begins to run Début de l’emprisonnement

(4) Notwithstanding subsection (1), a term ofimprisonment, whether imposed by a trialcourt or the court appealed to, commences orshall be deemed to be resumed, as the casemay be, on the day on which the convictedperson is arrested and taken into custodyunder the sentence.

(4) Malgré le paragraphe (1), une périoded’emprisonnement, infligée par un tribunal depremière instance ou par le tribunal saisi d’unappel, commence à courir ou est censéereprise, selon le cas, à la date où la personnedéclarée coupable est arrêtée et mise sousgarde aux termes de la sentence. [14] In R v Fice, 2005 SCC 32 [Fice], Justice Bastarache, writing for the majority of the Supreme Court of Canada (SCC),considered the issue of whether credit for pre-sentence custody should affect a sentencing judge’s discretion to impose a conditionalsentence. At the outset of his reasons, Justice Bastarache underlined that this was a problem of statutory

interpretation involving theapplication of sections 719(3) and 742.1 of the Criminal Code.

Section 742.1(

a) provides that a “sentence of imprisonment” of less thantwo years must be imposed before a conditional sentence can be authorized. [15] Justice Bastarache concluded that the time spent in pre-sentence custody is part of the total punishment imposed rather than amitigating factor that can affect the range of sentence with respect to the availability of the conditional sentence: Fice at para 18. JusticeBastarache ruled that the words “sentence of imprisonment of less than two years” in

section 742.1(

a) of the Criminal Code refer to the

total time taken into account by the sentencing judge in determining the degree of punishment warranted by the gravity of the offenceand the moral blameworthiness of the offender: Fice at para 40. [16] In R v Mathieu, 2008 SCC 21 [Mathieu], Justice Fish, writing for a unanimous SCC, decided that the words “imprisonmentfor a term not exceeding two years” in paragraph 731(1)(

b) of the Criminal Code, with regard to the availability of a probation order,refer to the term of imprisonment imposed at the time of sentencing, after credit for time spent in pre-trial custody. Justice Fishconsidered that an offender’s prior detention is merely one factor taken into account by the judge in determining the sentence: Mathieu atpara 17. In coming to this conclusion, Justice Fish stated that his

interpretation was consistent with the internal coherence andconsistency of the Criminal Code: Mathieu at paras 12-17. [17] Nevertheless, Justice Fish acknowledged that it is possible, on an exceptional basis, to treat time spent in pre-sentence custodyas part of the term of imprisonment imposed at the time of sentence: Mathieu at para 7, citing earlier SCC decisions in R v Wust, 2000SCC 18 [Wust] and Fice.

In addition, Justice Fish was careful to state that Mathieu is not a reconsideration of the position of the majorityin Fice. [18] Justice Fish’s recognition of the necessity, in appropriate circumstances, to treat time spent in pre-sentence custody as part ofthe term of imprisonment imposed at the time of sentence is consistent with the limited weight that is given to the principle that the samemeaning is implied by the use of the same expression in every part of

an act: Sommers and Gray v The Queen, (SCC),[1959] SCR 678 at p 685; Schwartz v Canada, (SCC), [1996] 1 SCR 254 at para 61. Words used in a different contextwithin the same act might have a different meaning: See Pierre-André Côté, Interprétations des lois, 4th ed (Montréal: Édition Thémis,2009) at p 384. [19] A key question, therefore, is whether the reference to “sentence” in the phrase “sentenced to imprisonment for two years ormore” in

section 750 of the Criminal Code is intended to fall within the general rule referred to by Justice Fish, or the exception. [20] In R v McDonald (1998), (ON CA), 40 OR (3d) 641, [1998] OJ No 2990 (QL), (CA) (applied by the SCCin Wust), the Court of Appeal of Ontario explained at para 57 that the provisions of the Criminal Code must be interpreted in accordanceto

section 718.2(b): As Lamer C.J.C. said in R. v. McIntosh at p. 699 S.C.R., "interpreting statutory provisions in context is a reasonable approach." It istherefore useful to look at other provisions of the Code that may shed light on the relationship between ss. 344(

a) and 719. Section718.2(

b) provides that the sentencing court "shall" take into consideration the principle that "a sentence should be similar to sentencesimposed on similar offenders for similar offences committed in similar circumstances".

If a sentencing court is unable to take intoaccount pre-sentence custody, there can be a huge disparity between two accused who have committed similar offences in similarcircumstances but where only one was able to obtain bail pending sentencing. [Emphasis added] [21] Similarly, failing to consider time spent in pre-sentence custody as part of the term of imprisonment contemplated in section750 of the Criminal Code would give rise to the possibility that one of two public servants found guilty of the same offense in the samecircumstances could suffer the vacancy of their employment, and the other avoid such vacancy, for the sole reason that one of them pledguilty shortly after arrest (and thus had no pre-sentence custody to be credited against sentence), and the other pled not guilty and hadmany months in pre-sentence custody to be credited.

The result would be that the public servant who accepted guilt from the beginningwould be treated more harshly than the public servant who refused to accept guilt. In my view, this is an absurd result that Parliament didnot intend. [22]

Section 750 of the Criminal Code is a reflection of Parliament’s intention to prevent individuals who have committed offencesof sufficient gravity from continuing their employment with the public service. Given the importance of decisions taken by publicservants in the lives of members of the public, their integrity is a legitimate concern.

Therefore, it is my view that this Court should cometo a conclusion similar to Justice Bastarache’s conclusion in Fice, and within the exception contemplated by Justice Fish in Mathieu.Section 750 of the Criminal Code refers to the total time taken into account by the sentencing judge in determining the degree ofpunishment justified by the gravity of the offence and the moral blameworthiness of the offender. [23] It is my opinion that CSC did not err in considering the period of credit for pre-trial custody in applying

section 750 of theCriminal Code, and it did not err in concluding that

section 750 remained applicable in the present case, even after the decision of theCourt of Appeal for British Columbia. IV. Conclusion [24] In my opinion, the application for judicial review should be dismissed. JUDGMENT THIS COURT’S JUDGMENT is that the present application for judicial review is dismissed with costs. “George R. Locke” Judge FEDERAL COURT

FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-2417-14 STYLE OF CAUSE: BEN MCBEATH v ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: May 19, 2015 JUDGMENT AND REASONS: LOCKE J. DATED: July 7, 2015 APPEARANCES : Mathew Létourneau Vivian Gates For The Applicant Adrian Bieniasiewicz For The Respondent SOLICITORS OF RECORD : Association of Canadian Financial Officers Ottawa, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario For The Respondent