2020 FC, 2020 FC 1074

Date: 20201119 Docket: T-455-16 Citation: 2020 FC 1074 Ottawa, Ontario, November 19, 2020 PRESENT: The Honourable Mr. Justice Barnes PROPOSED CLASS PROCEEDINGS AND PROPOSED SIMPLIFIED ACTION BETWEEN: KRISTEN MARIE WHALING (FORMERLY KNOWN AS CHRISTOPHER JOHN WHALING) Plaintiff and HER MAJESTY THE QUEEN Defendant ORDER AND REASONS [ 1 ] This matter was heard together with Liang v AGC , docket T-456-16. The issues arising on these motions are identical and these Reasons will apply to both proceedings.

The Plaintiffs in these two proceedings seek Orders under Federal Court Rule 334.12(2) certifying their actions as class proceedings and appointing them as representative plaintiffs on behalf of all proposed class members. [ 2 ] The claims advanced on behalf of the proposed classes pertain to the passage and implementation of certain provisions of the Abolition of Early Parole Act , SC 2011, c 11 [ AEPA ].

The impugned provisions were those that retrospectively removed access to accelerated parole review [APR] for first-time, non-violent Federal penitentiary inmates who were, but for the AEPA , held in custody beyond their APR release dates. Those provisions were subsequently declared to be unconstitutional in Liang v Canada , 2014 BCCA 190 , [2014] BCJ No 962 (QL) and Canada v Whaling , 2014 SCC 20 , [2014] 1 SCR 392 [ Whaling ]. In Whaling , the Court stated that the retrospective removal of APR amounted to double punishment and a clear violation of s 11(

h) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [ Charter ] – indeed, it was described as one of the " “clearest cases” " : see paras 63 and 72. [ 3 ] The claims now advanced by the Plaintiffs are made on behalf of approximately 3252 past inmates seeking damages payable under s 24(1) of the Charter : see affidavit of Renée Marshall sworn September 3, 2020. [ 4 ] The Plaintiffs have filed several affidavits from persons whose access to APR was curtailed by the passage of the AEPA describing the resulting prejudice they suffered. Ms.

Whaling asserts that, among other things, she was held in custody for more than two years beyond her APR eligibility date. For Mr. Liang, the additional period of incarceration was six months during which time he alleges a loss of income of more than $50,000. [ 5 ] These cases have been actively managed in the course of which the parties have substantially narrowed the scope of their disagreements about the content of appropriate certification Orders and the associated litigation plans.

What remains in dispute is the scope of certain preliminary legal questions that the parties seek to have resolved ahead of a trial and the scope of the common issues of fact and law to be resolved at trial. The Defendant does not oppose the certification of these actions provided that the Orders and litigation plans are approved in conformity with its proposed language.

All other matters necessary to satisfy Rule 334.16(1) and the terms of the certification Orders and litigation plans have been negotiated and resolved. [ 6 ] The Plaintiffs propose four common questions of fact and law – the answers to which, they say, are necessary to resolve the liability issues between the parties. They are the following:

(1) Did the AEPA breach the s. 11(

h) Charter rights of the class members?

(2) If so, was the s. 11(

h) breach justified under s. 1 of the Charter ?

(3) If the s. 11(

h) breach was not justified under s. 1 of the Charter , are damages pursuant to s. 24(1) a just and appropriate remedy for: i. Category One subclass members? ii. Category Two subclass members?

(4) Is the claim statute-barred under section 39(1) of the Federal Courts Act and does section 39(2) apply? [ 7 ] The Defendant does not take issue with these questions and, indeed, they generally conform to the four-part framework described in Vancouver v Ward , 2010 SCC 27 , [2010] SCR 28 [ Ward ] for establishing a claim to damages under s 24(1) of the Charter . The Defendant does, however, assert that a fifth " “critical” " question is required, the answer to which could be dispositive. That question is the following:

a. On the facts of this case, can the Crown, in its executive capacity, be held liable for government officials and Ministers implementing s. 10(1) of the AEPA , a legislative provision which was subsequently declared invalid by a court pursuant to s. 52(1) of the Constitution Act , 1982 ? [ 8 ] The Plaintiffs oppose the addition of this question on the basis that it misconstrues and unduly limits their theory of Crown liability for damages payable under s 24(1) of the Charter .

They maintain that their claims are not restricted to allegations against the executive and legislative branches of the government (or their members or agents) acting in common or independently. Rather, the claims to damages are based on the responsibility of the state as a whole for the infliction of harm arising from the " “wrongful” " implementation of unconstitutional legislation. The Plaintiffs’ revised Reply Memoranda puts their opposition as follows at paras 20-22: 20. The Defendant misconceives the nature of Charter damages.

Charter damages are public law damages for which the State “ writ large ” is directly (not vicariously) liable. When Charter damages are at issue, it is a conceptual error to attempt to attribute liability to individual state actors or some branch of the state (e.g. the executive). The SCC makes this point very clearly, in Ward : “ [22] The term "damages" conveniently describes the remedy sought in this case. However, it should always be borne in mind that these are not private law damages, but the distinct remedy of constitutional damages . As Thomas J. notes in Dunlea v.

Attorney-General, [2000] NZCA 84, [2000] 3 N.Z.L.R. 136, at para. 81, a case dealing with New Zealand's Bill of Rights Act 1990, an action for public law damages “is not a private law action in the nature of a tort claim for which the state is vicariously liable but [a distinct] public law action directly against the state for which the state is primarily liable ”. In accordance with s. 32 of the Charter , this is equally so in the Canadian constitutional context.

The nature of the remedy is to require the state (or society writ large) to compensate an individual for breaches of the individual's constitutional rights. An action for public law damages — including constitutional damages — lies against the state and not against individual actors . Actions against individual actors should be pursued in accordance with existing causes of action .” [Emphasis added] 21. Consequently, it is an error to ask whether the “ Crown, in its executive capacity ”, can be liable for Charter damages. 22.

Further, it is an error to distinguish between the executive and Parliament when considering where liability lies – the remedy of Charter damages lies against the state, or society, writ large. [ 9 ] To certify a class proceeding, it is essential that the members’ claims share a substantial common ingredient. This requires the identification of a common question or questions, the resolution of which is necessary to the outcome of each class member’s claim.

This requires a purposive analysis with a view to avoiding the duplication of fact finding or legal analysis: see Wenham v Canada , 2018 FCA 199 at para 72 , [2018] FCJ No 1088 (FCA). Purely hypothetical questions should not be approved. [ 10 ] I agree with the Plaintiffs that the Defendant’s proposed common question would not be determinative of these cases nor would the answer to it advance the cases in any significant way. There is undoubtedly an argument to be made that the Plaintiffs’ theory of liability cannot be made out.

Nevertheless, given the uncertainty that surrounds the threshold boundaries for the payment of Charter damages in this context, the Plaintiffs are entitled to make their cases as they have pleaded them: see Desjardins Financial Services Firm Inc v Asselin , 2020 SCC 30 , [2020] SCJ No 30 (QL). [ 11 ] It seems to me that if there is one issue of law in this area that amounts to settled doctrine it is that the state, in whatever capacity or capacities it acts, does not enjoy an absolute immunity from the payment of Charter damages when it causes injury to a person’s Charter -protected rights by implementing unconstitutional legislation.

While the legal threshold may be high, it is decidedly not insurmountable. This point is made quite clearly in Ward at paras 39-40 where the Court recognized the possibility of an award of Charter damages arising from state conduct that is " “clearly wrong, in bad faith or an abuse of power” " (ie. threshold misconduct): [39] In some situations, however, the state may establish that an award of Charter damages would interfere with good governance such that damages should not be awarded unless the state conduct meets a minimum threshold of gravity. This was the situation in Mackin v.

New Brunswick (Minister of Finance) , 2002 SCC 13 , [2002] 1 S.C.R. 405, where the claimant sought damages for state conduct pursuant to a valid statute. The Court held that the action must be struck on the ground that duly enacted laws should be enforced until declared invalid, unless the state conduct under the law was “clearly wrong, in bad faith or an abuse of power”: para. 78. The rule of law would be undermined if governments were deterred from enforcing the law by the possibility of future damage awards in the event the law was, at some future date, to be declared invalid.

Thus, absent threshold misconduct, an action for damages under s. 24(1) of the Charter cannot be combined with an action for invalidity based on s. 52 of the Constitution Act, 1982 : Mackin , at para. 81 . [40] The Mackin principle recognizes that the state must be afforded some immunity from liability in damages resulting from the conduct of certain functions that only the state can perform. Legislative and policy-making functions are one such area of state activity. The immunity is justified because the law does not wish to chill the exercise of policy-making discretion.

As Gonthier J. explained: The limited immunity given to government is specifically a means of creating a balance between the protection of constitutional rights and the need for effective government. In other words, this doctrine makes it possible to determine whether a remedy is appropriate and just in the circumstances.

Consequently, the reasons that inform the general principle of public law are also relevant in a Charter context. [para. 79] [ 12 ] Of course, if the Plaintiffs are able to establish a functional justification for an award of damages, it will be open to the Defendant to raise its own case to show why damages are not an appropriate or just remedy for reasons of public policy, good governance and separation of powers. It is not open, however, to the Defendant to recast the Plaintiffs’ legal theory of their cases into something much

narrower. As noted above, answering the Defendant’s question will not be dispositive of the larger case the Plaintiffs already assert in the form of the broader common questions the parties have put forward by agreement. What the Defendant appears to be advancing indirectly is a motion to strike these actions on the basis that they do not disclose a legally tenable cause of action. The Court has already dismissed two previous defence motions to strike based on a finding that the state of the law in these factual contexts is uncertain and evolving.

The current situation is no better than it was when those motions were dismissed. These remain issues for trial that can and should be answered on a full evidentiary record in response to the agreed common questions. The need for an evidentiary record in the determination of Charter damages in cases like these was clearly recognized in Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at paras 55-59 , [2003] 3 SCR 3: 55 First, an appropriate and just remedy in the circumstances of a Charter claim is one that meaningfully vindicates the rights and freedoms of the claimants.

Naturally, this will take account of the nature of the right that has been violated and the situation of the claimant. A meaningful remedy must be relevant to the experience of the claimant and must address the circumstances in which the right was infringed or denied.

An ineffective remedy, or one which was “smothered in procedural delays and difficulties”, is not a meaningful vindication of the right and therefore not appropriate and just (see Dunedin , supra , at para. 20, McLachlin C.J. citing Mills , supra , at p. 882, per Lamer J. (as he then was)). 56 Second, an appropriate and just remedy must employ means that are legitimate within the framework of our constitutional democracy. As discussed above, a court ordering a Charter remedy must strive to respect the relationships with and separation of functions among the legislature, the executive and the judiciary.

This is not to say that there is a bright line separating these functions in all cases. A remedy may be appropriate and just notwithstanding that it might touch on functions that are principally assigned to the executive. The essential point is that the courts must not, in making orders under s. 24(1), depart unduly or unnecessarily from their role of adjudicating disputes and granting remedies that address the matter of those disputes. 57 Third, an appropriate and just remedy is a judicial one which vindicates the right while invoking the function and powers of a court.

It will not be appropriate for a court to leap into the kinds of decisions and functions for which its design and expertise are manifestly unsuited. The capacities and competence of courts can be inferred, in part, from the tasks with which they are normally charged and for which they have developed procedures and precedent. 58 Fourth, an appropriate and just remedy is one that, after ensuring that the right of the claimant is fully vindicated, is also fair to the party against whom the order is made.

The remedy should not impose substantial hardships that are unrelated to securing the right. 59 Finally, it must be remembered that s. 24 is part of a constitutional scheme for the vindication of fundamental rights and freedoms enshrined in the Charter . As such, s. 24, because of its broad language and the myriad of roles it may play in cases, should be allowed to evolve to meet the challenges and circumstances of those cases.

That evolution may require novel and creative features when compared to traditional and historical remedial practice because tradition and history cannot be barriers to what reasoned and compelling notions of appropriate and just remedies demand. In short, the judicial approach to remedies must remain flexible and responsive to the needs of a given case.

Also see Ward , above, at paras 34-40 and Brazeau v Canada (Attorney General) , 2019 ONSC 1888 , [2019] OJ No 1451 (QL), 2020 ONCA 184, [2020] OJ No 1062 (QL). [ 13 ] I would add that, at this stage, the Court is not entitled to assess the strength of the case: see Wenham , above. [ 14 ] In the result, I do not approve the Defendant’s proposed common question for inclusion in the certification Orders. [ 15 ] The parties also partially disagree about certain preliminary questions of law that could be answered in advance of trial.

They each say that answering their respective preliminary questions has the potential to narrow the issues left for trial. [ 16 ] In principle the resolution of preliminary questions of law can simplify a class proceeding: see for example Manuge v Canada , 2012 FC 499 , [2013] 4 FCR 647. That said, there is no requirement that a party’s proposed preliminary question be included within a certification Order, particularly where there is a strong disagreement about its benefits.

If the resolution of a preliminary question is unlikely to make the proceeding simpler or more efficient, there is no value in approving it for resolution in advance of trial. [ 17 ] The Plaintiffs’ proposed preliminary question of law is the following:

a) Can the Crown be held liable in damages for the enactment or implementation of a law that is subsequently declared to be unconstitutional? [ 18 ] The Defendant proposes the following alternatives:

a) Can the Crown, in its executive capacity, be held liable in damages for government officials and Ministers preparing and drafting a proposed Bill that was later enacted by Parliament, and subsequently declared invalid by a court pursuant to s 52(1) of the Constitution Act, 1982 ?

b) Can the Crown, in its executive capacity, be held liable in damages for Parliament enacting a Bill into law, which legislation was later declared invalid by a court pursuant to s 52(1) of the Constitution Act, 1982 ? [ 19 ] I am not satisfied that any of the above questions should be answered in advance of trial. As discussed above, in the absence of an evidentiary record, the proposed questions are all hypothetical and answering them would not be of assistance in determining the Defendant’s potential liability.

It would still remain to be decided what factual circumstances would be sufficient to trigger Charter damages. These are matters of mixed fact and law that will require proof. I would add that the Defendant’s proposed questions are subsumed within the agreed common questions of fact and law and are unnecessary for the resolution of the cases.

[ 20 ] Inasmuch as these cases remain under case management, these or related matters can continue to be discussed with a view to finding common ground. However, for the purposes of these motions, the Court rejects for inclusion in the certification Orders all of the disputed preliminary questions. [ 21 ] The parties have jointly submitted a form of Orders and attached litigation plans leaving out only the provisions dealing with the issues arising on these motions.

I am satisfied that all of the requirements for certifying these two proceedings as class actions under Rule 334.16(1) have been met and the Order will be issued as presented and in accordance with these Reasons. ORDER IN T-455-16 THIS COURT ORDERS that: 1 . This action is hereby certified as a class proceeding against Her Majesty the Queen; 2. The Class is defined as follows: a.

Class Members: are “individuals* who were sentenced before March 28, 2011 and, as a result of s. 10(1) of the Abolition of Early Parole Act, SC 2011, c. 11 (“ AEPA ”) removing their access to accelerated parole review (“APR”), were released from prison after their APR day parole eligibility date**.” *The term “individuals” is defined to mean persons who were, or are, offenders as described in the AEPA , the Corrections and Conditional Release Act, SC 1992 c. 20 (“ CCRA ”) and the International Transfer of Offenders Act, SC 2004 c. 21 (“ ITOA ”). ** The term “APR day parole eligibility date” is to be understood with reference to s. 119.1 of the CCRA , which provides, “The portion of the sentence of an offender who is eligible for accelerated parole review under sections 125 and 126 that must be served before the offender may be released on day parole is six months, or one sixth of the sentence, whichever is longer.” This definition excludes the following two groups: i. individuals who subsequently were reviewed under the APR scheme but received a “not directed” decision from a panel of the Parole Board on the APR criteria; and ii. individuals who had their access to the APR scheme removed by s. 10(1) of the AEPA but were released on, or prior to, their APR day parole eligibility date. b. “Subclass members” are any Class Members broken down into subclass categories, as follows: i.

Category A subclass – individuals who were reviewed and released on APR parole or regular parole, excluding individuals who were internationally transferred to Canada under the ITOA with APR day parole eligibility dates that were either prior to, or less than six months after, their day of transfer; ii.

Category B subclass – individuals who were denied regular parole solely due to grounds which would not have been applicable had the APR criteria been applied, excluding individuals who were internationally transferred to Canada under the ITOA with APR day parole eligibility dates that were either prior to, or less than six months after, their day of transfer; iii.

Category C subclass – individuals who were internationally transferred to Canada under the ITOA with APR day parole eligibility dates that were either prior to, or less than six months after, their day of transfer, who were reviewed and released on APR parole or regular parole; and iv.

Category D subclass – individuals who were internationally transferred to Canada under the ITOA with APR day parole eligibility dates that were either prior to, or less than six months after, their day of transfer, who subsequently were denied regular parole solely due to grounds which would not have been applicable had the APR criteria been applied. 3. The representative Plaintiff hereby appointed is Kristen Marie Whaling. 4. The proceeding is certified on the basis of the following common issues, the first 3 of which shall be determined first as preliminary questions of law: a.

Did s. 28 of the ITOA apply to Category C and D subclass members such that the Parole Board was not required to review them for APR day parole until six months after their date of transfer? b. Under the APR regime, i. by statute or regulation, was there a date by which the Parole Board was required to review an individual for APR day parole release?; ii. if so, what was that date?; iii. by statute or regulation, was there a date by which an individual directed for APR day parole release by the Parole Board was entitled to be released?; iv. if so, what was that date?

c.

(1) Can the estate of a deceased class member in this action claim Canadian Charter of Rights and Freedoms forming part of the Constitution Act, 1982 (“ Charter ”) damages for violation of a s. 11(

h) Charter right?; and (2) if the answer to (1) is yes, then do provincial estates statutes providing for an “ alive as of ” date prohibit or limit recovery of those Charter damages? d. Did the AEPA breach the s. 11(

h) Charter rights of the class members? e. If so, was the s. 11(

h) breach justified under s. 1 of the Charter ? f. If the s. 11(

h) breach was not justified under s. 1 of the Charter , are damages pursuant to s. 24(1) a just and appropriate remedy for: i. Category A subclass members? ii. Category B subclass members? iii. Category C subclass members? iv. Category D subclass members? g. Is the claim statute-barred under section 39(1) of the Federal Courts Act and does s. 39(2) apply? 5. Grace, Snowdon & Terepocki LLP are appointed as Class Counsel; 6. The Class Members claim the following relief: a. Such remedy as the Court considers appropriate and just in the circumstances pursuant to s. 24(1) of the Charter for the infringement or denial of their Constitutional rights or freedoms as guaranteed by s. 11(

h) of the Charter ; b. Prejudgment interest; and c. Costs on a full or substantial indemnity basis. 7. The Litigation Plan in the form attached to this Order as

Schedule “A” is approved; 8. No costs are payable on this motion for certification in accordance with Rule 334.39 of the Federal Courts Rules . "R.L. Barnes" Judge

FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-455-16 STYLE OF CAUSE: KRISTEN MARIE WHALING (FORMERLY KNOWN AS CHRISTOPHER JOHN WHALING) v HER MAJESTY THE QUEEN PLACE OF HEARING: HELD BY VIDEOCONFERENCE BETWEEN HALIFAX, NOVA SCOTIA OTTAWA, ONTARIO, AND VANCOUVER, BRITISH COLUMBIA DATE OF HEARING: October 2, 2020

ORDER AND REASONS: BARNES J. DATED: november 19, 2020 APPEARANCES : Tonia Grace David Honeyman For The Applicant Cheryl Mitchell Matt Huculak Ryan Grist For The Respondent SOLICITORS OF RECORD : Grace, Snowdon & Terepocki LLP Barristers and Solicitors Abbotsford, BC For The Applicant Attorney General of Canada Vancouver, BC For The Respondent