COURT OF APPEAL FOR ONTARIO

CITATION: Inlakhana v. Canada (Attorney General), 2023 ONCA 836

DATE: 20231219

DOCKET: COA-23-CV-0395

Fairburn A.C.J.O., van Rensburg and Zarnett JJ.A.

BETWEEN

Souphin Inlakhana, Damion Inlakhana, Somnuck Inlakhana and Khambay Inlakhana

Plaintiffs (Appellants)

and

The Attorney General of Canada

Defendant (Respondent)

Kevin Egan, for the appellants

Karen Watt and Joseph Chan, for the respondent

Heard: December 5, 2023

On appeal from the order of Justice Helen A. Rady of the Superior Court of Justice, dated March 10, 2023, with reasons reported at 2023 ONSC 1652.

REASONS FOR DECISION

[1] Souphin Inlakhana was serving a penitentiary sentence of 6 years, 4 months and 27 days. At the time of the commission of the offences for which she was sentenced, the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”) provided for accelerated parole for non-violent offenders serving their first penitentiary sentence. There is no dispute that under this legislation Ms. Inlakhana would have been considered for early parole after one sixth of her sentence, but for the fact that the relevant provisions of the CCRA were repealed on March 28, 2011, about six months before she was convicted and sentenced.

[2] Several inmates at Grand Valley Institution for Women, including Ms. Inlakhana, succeeded in establishing that their s. 11(i) Charter rights had been breached by denying them accelerated parole review. Since the offences for which they were sentenced were committed before the accelerated parole process was abolished, they were entitled to the benefit of lesser punishment: Lewis et al. v. The Attorney General of Canada, 2014 ONSC 6394, aff’d 2015 ONCA 379, leave to appeal refused, [2015] S.C.C.A. No. 325. Therefore, the effect of the decision was that Ms. Inlakhana was eligible for accelerated parole review.

[3] Immediately upon being notified of that decision, the Correctional Service of Canada (“CSC”) started to implement the process for determining Ms. Inlakhana’s parole eligibility. She ultimately received parole 43 days after the constitutional declaration was made.

[4] The appellants, Ms. Inlakhana and the Family Law Act claimants, commenced an action seeking damages for, among other things, false and unlawful imprisonment, negligence and Charter-related infringements. There were two aspects to the claim. The first had to do with the fact that Ms. Inlakhana spent much longer in custody as a result of the unconstitutional retroactive denial of the accelerated parole review system under the CCRA. The second had to do with what the appellants describe as a 43-day delay in processing Ms. Inlakhana’s release from custody on parole after the constitutional declaration was made.

[5] The appellants brought a motion for partial summary judgment as it related to the second part of the claim. They sought a finding that the respondent was liable for damages for the 43 days of imprisonment. The respondent took the position that summary judgment should be granted, but in its favour, releasing the respondent from liability arising from a failure to act expeditiously after the declaration was made.

[6] The motion judge granted summary judgment in favour of the respondent.

[7] The appellants contend that the motion judge’s reasons reflect two errors.

[8] First, they say that the motion judge erred when she concluded that the respondent had not acted negligently in processing Ms. Inlakhana’s entitlement to early parole. While the motion judge accepted that the respondent owed Ms. Inlakhana a duty of care, she concluded that there was no evidence that the respondent had breached the standard of care. As the motion judge put it:

I have also concluded that [the respondent] did not act negligently in its processing of [Ms. Inlakhana’s] entitlement to APR. There can be little question that [she] was owed a duty of care by the [the respondent]. However, there is no evidence that it breached the standard of care required of it. At the risk of repetition, the CSC and [National Parole Board of Canada] were required to complete a process before [Ms. Inlakhana] could be released. I am not persuaded that the unfortunate delay of 26 business days was unreasonable in the circumstances. To hold otherwise would be to judge with the acuity of 20/20 hindsight.

[9] The appellants argue that the motion judge erred by concluding that the respondent had not breached the standard of care, without first determining what the standard of care was in these circumstances. The difficulty with this submission is that there was simply no evidence of the standard of care in circumstances such as these, where the process for early parole commenced only after the detainee had passed the early parole date. While there was evidence to suggest that, in the normal course, the accelerated parole process commences 90 days in advance of the parole eligibility date, there was no evidence to support a different standard of care after a parole eligibility date has passed.

[10] Determining early parole or, indeed, any parole, does not involve a rubber stamp. It requires the Parole Board to have regard to numerous materials, in part reflected in s. 101(a) of the CCRA, with a view to determining whether the offender will present a risk of committing a violent offence if released into the community: Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, at para. 2. This can take time, which is why, in the normal course, the process is set in motion 90 days in advance of the date when the offender would be eligible for early parole. In this case, it took just less than half of that time.

[11] We see no error in the motion judge’s approach to this issue.

[12] Second, the appellants argue that the motion judge erred in dismissing the Charter claim, specifically that Ms. Inlakhana had been denied her s. 7 right to liberty "contrary to the principles of fundamental justice". The appellants contend that the motion judge erred when she suggested that the CSC and Parole Board were mandated to follow a process. They suggest that the following passage from the reasons reflects error:

The [Parole Board] is statutorily required to review all information with respect to an offender in order to determine whether there are grounds to believe that she is likely to commit an offence with violence before the expiration of the sentence: CCRA s. 101(a). I agree that [Ms. Inlakhana’s] release was virtually a "sure thing" but nevertheless, a statutorily mandated process was in place. As a result, it cannot be said that her detention for an additional 43 days was contrary to the principles of fundamental justice.

[13] The appellants suggest that the trial judge erred when she said that there was a statutorily mandated process in place to review information before determining whether Ms. Inlakhana should get parole. We disagree.

[14] Conditional release is governed under the CCRA. In particular, as mentioned earlier, s. 101(a) explicitly requires the Parole Board to take into consideration all manner of enumerated factors and information in “achieving the purpose of conditional release”. While Ms. Inlakhana’s release may have been, as the motion judge put it, “virtually a ‘sure thing’”, the decision about early release was that of the Parole Board and the Parole Board alone. While the information provided to the Board may have informed what it was likely to do, parole could not be granted until all the necessary information was provided to the Board and the Board was able to exercise its discretion in accordance with that information.

[15] We see no error in the motion judge's reasons.

[16] This leaves an issue raised for the first time during oral submissions and upon which we later received written submissions.

[17] Although the appellants approved the form of the order appealed from, during oral submissions, counsel raised concerns about its reach. In particular, he points to para. 2 of the order, which says:

THIS COURT ORDERS THAT summary judgment is granted in favour of the [respondent], dismissing that portion of the [appellants]’ claim for damages, respecting the 43 days the [appellant], Souphin Inlakhana, remained in custody between November 3, 2014 and December 17, 2014…

[18] To the extent that there may be any confusion over the matter, the appellants ask this court to clarify that the granting of the summary judgment motion relating to the 43-day period relates only to the arguments placed before the motion judge. As noted earlier, there were two different claims relating to two distinct periods of time. The motion judge outlined these two distinct periods as follows:

There are two discrete time periods covered by [the appellants’] claim. The first has to do with the effect of the abolition of APR and its subsequent reinstatement, resulting in [Ms. Inlakhana] serving about 26 months longer in custody than she should have.

The second is the delay in releasing [Ms. Inlakhana] from prison following Justice Hambly's decision on November 3, 2014 until December 16, 2014, a period of 43 days.

[19] The motion dealt with whether the alleged tardiness in releasing Ms. Inlakhana after the declaration was made, the 43 days, standing on its own, was negligent or breached the Charter.

[20] The appellants argue that the motion judge’s order only intended to dismiss these stand-alone claims related to Ms. Inlakhana’s delayed release after the declaration. They note that the first part of the claim covers the entire time from Ms. Inlakhana’s parole eligibility date, being October 21, 2012, up to her ultimate release on December 17, 2014. They maintain that this portion of the claim covers the entire 26 months that the appellant was held in detention beyond what would have been her parole eligibility date if the offending legislation had not been retroactively applied. The 26 months are said to subsume the 43 days, which were also the subject of the second claim. The second claim merely advanced a second theory of liability: that the respondent failed to act expeditiously after the declaration was made.

[21] Importantly, the appellants also point out that the claims implicate different government actors, including employees of the CSC and Parole Board. They also argue that the motion judge’s reasons clearly treat any damages for the 26-month total period as outside the scope of the decision. Therefore, the appellants say that it is still open to them to raise the 43 days in the context of the larger claim.

[22] The respondent disagrees, arguing that the summary judgment dismissed all claims relative to the 43-day period. The respondent focusses on the wording of the motion judge’s decision, pointing out that she referred to two “discrete time periods” and understood that the respondent was seeking a determination that the appellants “[are] not entitled to damages for the time [Ms. Inlakhana] spent incarcerated from November 3, 2014 to December 16, 2014”. There was no caveat to this observation, in the sense that it was not limited only to the claim arising from Ms. Inlakhana’s delayed release.

[23] We agree with the appellants. It is clear from the motion judge's reasons that she was only deciding the processing issue as it related to the 43 days. Read in context, the motion judge’s reasons make clear that she treated the time periods as “discrete” only to the extent that she was dealing with the allegations pertaining to the alleged delay in release from detention after the declaration. In contrast, the decision is entirely silent as it relates to the broader impact on the appellant’s interests arising from the enactment of the Abolition of Early Parole Act, S.C. 2011, c. 11. If the motion judge really meant to dismiss all of the claims relating to this period of time, one would clearly expect her to have addressed why the 43-day period should be treated differently than the rest of the 26-month period. She did not.

[24] Accordingly, we allow the appeal only to the extent of amending paragraph 2 of the order by replacing the words following the word “respecting” with the following: “liability for delay in the implementation of the decision of Justice Hambly dated November 3, 2014.”

[25] Costs to be paid to the respondent in the amount of $10,000, all inclusive.

“Fairburn A.C.J.O.”

“K. van Rensburg J.A.”

“B. Zarnett J.A.”