Court File and Parties

CITATION: Inlakhana v. Canada (Attorney General), 2017 ONSC 821

COURT FILE NO.: 2552/15

DATE: 2017/02/06

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Souphin Inlakhana, Damion Inlakhana, Somnuck Inlakhana, Khambay Inlakhana (Plaintiffs/Responding Party)

AND:

The Attorney General of Canada (Defendant/Moving Party)

BEFORE: Justice J.C. George

COUNSEL: Kevin Egan, Counsel for the Plaintiffs/Responding Party

Karen Watt, Counsel for the Defendant/Moving Party

HEARD: November 23, 2016

ENDORSEMENT

Background

[1] The plaintiff Souphin Inlakhana (Souphin) seeks damages for false and unlawful imprisonment, negligence, psychological suffering, emotional distress, and the loss of amenities and expectations of life. She alleges a violation of her rights under ss. 7, 11 and 12 of the Canadian Charter of Rights and Freedoms (Charter), and seeks damages pursuant to s. 24(1). She also claims special damages for loss of income and out of pocket expenses.

[2] The plaintiffs Damion Inlakhana, Somnuck Inlakhana and Khambay Inlakhana seek damages pursuant to the Family Law Act, R.S.O. 1990, c. F.3.

[3] On September 27, 2011, Souphin was convicted of criminal offences and sentenced to six years, four months, and twenty-seven days in prison. The offence dates were between August 3, 2010 and March 3, 2011 at which time the Corrections and Conditional Release Act (CCRA) provided for an accelerated parole review (APR) for non-violent offenders serving a first sentence in a federal institution. As of the offence dates, Souphin fit within this category of offenders.

[4] The APR provisions presumptively entitled these offenders to day parole after serving the greater of six months or one-sixth of their sentence. Souphin would have been eligible for day parole on October 21, 2012.

[5] These provisions were repealed on March 28, 2011 when, with retrospective application, the Abolition of Early Parole Act (AEPA) came into force. Section 10(1) of the AEPA provided that:

Subject to subsection (2), the accelerated parole review process set out in sections 125 to 126.1 of the Corrections and Conditional Release Act, as those sections read on the day before the day on which section 5 comes into force, does not apply, as of that day, to offenders who were sentenced, committed or transferred to penitentiary, whether the sentencing, committal or transfer occurs before, on or after the day of that coming into force.

[6] On November 3, 2014, Hambly J. determined a habeas corpus application concluding that Souphin’s Charter rights had been violated and that she was eligible for APR at one-sixth of her sentence. She was released on parole on December 16, 2014. On May 29, 2015, the Ontario Court of Appeal upheld Hambly J. Leave to appeal to the Supreme Court was denied. Lewis et al. v. The Attorney General of Canada, 2014 ONSC 6394.

[7] She was imprisoned for approximately twenty-six months longer than was necessary. She claims that not only did the AEPA infringe her guaranteed Charter rights, but that government actors knew, or ought to have known, that its retrospective application was unconstitutional. She argues the law’s validity wasn’t just the subject of vigorous debate, where reasonable people could disagree, but that its illegality was unquestionable, and that any decision to go forward with it was highhanded and done in bad faith.

Motion to Strike Claim

[8] The Attorney General of Canada (Crown) brings this motion pursuant to Rule 21.01(1)(b) seeking to strike the Statement of Claim. To succeed, it must establish that its plain and obvious the claim discloses no reasonable cause of action. I am to assume the facts pleaded are true.

[9] In support of its position, the Crown argues the following:

• That eligibility for APR does not equate to automatic release.
• After the court’s direction Souphin was granted parole and released on December 16, 2014.
• The Statement of Claim fails to provide material facts and elements required to find a reasonable cause of action.

[10] It highlights two things. First, when a claim contains bare assertions, with no material facts plead, it must be struck. See Vojic v. Canada 1987 9545 (FCA), [1987] F.C.J. No. 811; Chavali v. Canada (2002), 2001 FCT 268, 202 F.T.R. 166. And second, the government has a limited immunity against civil actions stemming from legislation subsequently found deficient.

[11] The Crown’s position is there is no legal or factual basis to ground a finding of bad faith or wrongful conduct. Also, that it is common for proposed bills to be subjected to vigorous debate and harsh criticism before adoption, often in the form of constitutionality concerns, but it doesn’t mean a cause of action lies should it ultimately be found invalid.

Plaintiff’s Response to Motion

[12] Souphin submits that her claim points to material facts in support of a cause of action. She distinguishes hers from a situation where there is vigorous debate over proposed legislation. She contends the government, and responsible Minister specifically, were put on notice that this provision was unconstitutional. She points to evidence and political events that suggest the planned legislation was shaped by an ulterior motive. Therefore, being so clearly wrong, it must have been enacted in bad faith. This was not merely a vigorously debated piece of legislation, in which case the government would be protected. It went beyond that, with the outcome of enacting this law entirely foreseeable.

[13] She alleges bad faith because the government knew it was unconstitutional, but nevertheless proceeded, in part to fulfill its election promise to be “tough on crime”. Unlike a typical case where reasonable debate ensues, she argues this was plainly in violation of the principle that if a punishment is increased between the date of an offence and the sentencing, the offender is entitled to the benefit of the lesser punishment. She argues there is no ambiguity in s. 11(i) of the Charter, or difficulty in its application.

[14] Two separate violations are alleged. The first in her inability to seek parole in accordance with the APR regime that existed at the time of her offence. The second in how, after Hambly J.’s finding, she was held for 40 days before release. In other words, the decision was not promptly acted on, which led to her continued detention with no factual basis to rebut the legal presumption that favoured release.

[15] She contends both these s. 11 breaches were also violations of her s. 7 right to life, liberty and security of the person, s. 9 right to be free from arbitrary detention, and s. 12 right to be free from cruel and unusual punishment.

[16] Rule 25.06 requires that facts be pleaded, not evidence. In argument, Souphin’s counsel points to facts which, if accepted, amount to a valid claim. For instance, he cites Parliamentary records of proceedings, with specific reference to the Standing Committee on Legal and Constitutional Affairs; as well as the existence of an ulterior motive flowing from campaign promises. He quotes the Minister at the time, who had previously commented on retroactivity. This isn’t evidence. These are all facts. Facts which, if true, could sustain a claim.

Law

[17] Before addressing the test to be applied on a motion to strike, it’s important we understand the concept of government immunity. The pleaded facts (taking them at its highest), must be capable of supporting a finding of bad faith or wrongful conduct.

[18] In each of Guimond v. Quebec (AG) 1996 175 (SCC), [1996] 3 S.C.R. 347 and Mackin v. New Brunswick 2002 SCC 13, [2002] 1 S.C.R. 405, the court is clear in that immunity attaches to the law-making function unless the government has acted in bad faith or engaged in other wrongful conduct. In Mackin the court writes this at paras. 78 and 79:

In the legal sense, therefore, both public officials and legislative bodies enjoy limited immunity against actions in civil liability based on the fact that a legislative instrument is invalid …. Thus, the government and its representatives are required to exercise their powers in good faith and to respect the “established and indisputable” laws that define the constitutional rights of individuals. However, if they act in good faith and without abusing their power under prevailing law and only subsequently are their acts found to be unconstitutional, they will not be liable. Otherwise, the effectiveness and efficiency of government action would be excessively constrained. Laws must be given their full force and effect as long as they are not declared invalid.

[19] The purpose behind this is obvious. We do not want to inhibit or unduly constrain the exercise of policy-making discretion. This should be protected. The Supreme Court in Vancouver (City) v. Ward 2010 SCC 27, [2010] 2 S.C.R. 28 says the government cannot be deterred by the possibility of future damage awards, as this would undermine the rule of law.

[20] In Roach v. Canada (Attorney General), 2009 7178 (ONSC), Cullity J. addresses a situation where the prevailing thought is proposed government action violates the Charter. In para. 56 he writes:

Even prior to the decision of the Federal Court in 1994 – and a fortiori after its release – the Crown and its officials administering the provisions of the Citizenship Act could not, in my opinion, be found to have known, or to know, that the form of the oath infringes rights guaranteed by the Charter even if in this proceeding it is held to do so. They could have been wilfully blind to such an infringement unless its existence should have been apparent to them. The fact that firm views about the effect of the Charter might be held by practitioners and scholars, or that a particular decision does not receive general approval, or that there is reason to believe it might be revisited after the case law undergoes further evolution, could not, in my opinion, justify a conclusion that the Crown or its servants have, or had, the required knowledge that the provisions of a statute breached the Charter – or that they were wilfully blind to such an infringement. Knowledge that would justify a finding of bad faith, or wilful blindness, by officials administering a statute connotes a degree of certainty that could not have existed. To suggest the contrary after the decision of the Federal Court is, in my opinion, patently ridiculous.

[21] When applying the test to strike a claim, the pleaded facts must be deemed proven. The Supreme Court, in Attorney General of Canada v. Inuit Tapirisat of Canada 1980 21 (SCC), [1980] 2 S.C.R. 735, writes this at para. 30:

…all of the facts pleaded in the statement of claim must be deemed to be have been proven. On a motion such as this a court should, of course, dismiss the action or strike out any claim made by the plaintiff only in plain and obvious cases where the court is satisfied that “the case is beyond doubt”.

[22] This principle is confirmed in Hunt v. Carey Canada Inc. 1990 90 (SCC), [1990] 2 S.C.R. 959, and Operation Dismantle Inc. v. The Queen 1985 74 (SCC), [1985] 1 S.C.R. 441, both also holding that courts should be hesitant to strike out any claim on the basis it discloses no reasonable cause of action.

[23] The Crown relies upon Vojic, where the court found the claim before it contained bare assertions with no material facts pleaded. Similarly in Chavali, while it lacked jurisdiction, out of an abundance of caution the court went on to consider the issue at hand, finding the claim before it did not contain any specific allegations against the defendant. It found no material facts were pleaded.

[24] Both these represent good law. It is correct to say that should I find Souphin’s pleadings contain no material facts that could support a cause of action, I must strike it. The question is, do the facts set out in her Statement of Claim link the government to the damages she seeks?

[25] I must first determine whether a cause of action exists for enacting unconstitutional legislation? As I have already addressed, typically no. But it is possible under certain circumstances.

[26] On this point the Crown relies on the Mackin decision. The facts are similar in that the impugned legislation was found to be unconstitutional. The court was considering whether, on the record before it, it could be said the New Brunswick government acted negligently, in bad faith, or whether it abused its power in enacting that legislation. The court spoke of government immunity, which is essential in a democracy, but described it as limited. The immunity is only available if government representatives acted in good faith and respected the “established and indisputable” laws that touch upon individuals’ constitutional rights.

[27] In this case, I am not determining the ultimate issue, but deciding simply whether there are sufficient facts plead, that could support such a finding.

[28] What strikes me about Mackin is its reference to the government’s obligation to respect established and indisputable laws that address defined constitutional rights. Sections 11(h) and (i) of the Charter provide that:

11. Any person charged with an offence has the right

(h) If finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

[29] There are no other Charter provisions clearer than these. To draft a law that doesn’t comply, in particular with (i), is far different than a law that is ultimately found to be in violation of, for instance, s. 7 or 12. The law is rarely black and white, and quite often a law that is easily understood upon a plain reading, can be difficult and complicated in its application. Not so for these two.

[30] If indeed the Minister, and other government representatives, understood s. 11(i) of the Charter – and how could they not have - the debate and advice they received in advance, is almost insignificant. It would have merely confirmed what is obvious.

[31] On the issue of bad faith, there remains the question of whether the pleaded facts can support the claim. On this issue, which is described as the “threshold of misconduct”, the Supreme Court writes this in Henry v. BC (A.G.) 2015 SCC 24, [2015] 2 S.C.R., 214.

When a heightened per se liability threshold has been imposed, this will have consequences at the pleadings stage. To survive a motion to strike, a claimant must plead sufficient facts to disclose a reasonable cause of action. …if the alleged Charter violation occurs in a context where the courts have imposed a heightened per se liability threshold, the claimant must particularize facts that, if proven, would be sufficient to establish that the state conduct met the required threshold of gravity. Failure to do so will be fatal to the claim.

[32] In Roach Cullity J. writes this:

The fact that firm views about the effect of the Charter might be held by practitioners and scholars or that a particular decision does not receive general approval, or that there is reason to believe it might be revisited after the case law undergoes further evolution, could not, in my opinion justify a conclusion that the Crown or its servants have, or had, the required knowledge that provisions of a statute breached the Charter – or that they were wilfully blind to such an infringement. Knowledge that would justify a finding of bad faith, or wilful blindness, by officials administering a statute connotes a degree of certainty that could not have existed.

[33] That is the issue here. What level of certainty did the government have, or ought to it have had, about the AEPA’s constitutionality?

[34] In the court’s ultimate assessment of Charter damages pursuant to s. 24(1), should it get to that point, it would have to apply the four-prong test set out in Ward. The Crown suggests I should also be guided by the court’s comments in Attorney General of Canada v. Jacques Gagne (Province of Quebec), No.: 500-17-090280-10 where the court writes:

…when the state is merely exercising its functions, namely enacting a statute that may later be declared unconstitutional, damages are not a functional remedy. Legislation is presumed to be valid and constitutional, and immunity is granted to a state exercising one of its functions.

[35] Souphin’s counsel argues that Gagne is inconsistent with the Supreme Court’s decision in Mackin.

Parties Positions

[36] The Crown’s position is threefold. First, the legislative decision to enact the AEPA is immune. Second, Hambly J.’s ruling was simply to confirm Souphin’s eligibility for parole, and the process that ensued was responsible and timely. And third, no facts have been pleaded sufficient to meet the threshold set out in Henry.

[37] Souphin focuses on the language in Mackin which speaks to the limited nature of government immunity, reminding me of the high threshold on a motion to strike and the caution courts must use in considering such requests.

[38] She doesn’t question the applicable principles, or with the nature of government immunity, but contends her Amended Statement of Claim includes pleaded facts (not evidence), that support a finding the government was “clearly wrong” in its decision to move forward with this legislation, and that it did so for ulterior, likely political, purposes.

Analysis

[39] I agree with Souphin. In addition to the unambiguous meaning of s. 11(i), as distinct from other pre-enactment questions and concerns which might lead to a law’s ultimate failure, para. 18 of the Amended Statement of Claim alleges that the Minister had been advised of its unconstitutionality and reminded of past jurisprudence.

[40] I don’t know if this is indeed the proper characterization, but if it’s true, as Souphin has pleaded, that the government “recklessly and without regard to the Canadian Charter of Rights and Freedoms continued to push legislation forward”, knowing it would fail and knowing it was unconstitutional, then that government decision was clearly wrong, done in bad faith, and potentially an abuse of process. Which, if any of that were true, could attract damages under s. 24(1).

[41] Souphin draws an analogy between this case and the issues addressed in Henry. Henry, which sets out the test for assessing damages after a prosecutor’s wrongful non-disclosure, indicates the plaintiff must prove on a balance of probabilities that:

• the prosecutor intentionally withheld information;
• the prosecutor knew or ought reasonably to have known that information was material to the defence and that the failure to disclose likely impinge on his or her ability to make full answer and defence;
• withholding information violated his or her Charter rights; and
• -he or she suffered harm as a result.

[42] At para. 33 of her factum she writes this:

An analogy can be drawn in this case. The plaintiff has pleaded material facts to support that:

(i) the government actors intentionally pursued legislation to affect offenders such as [me];

(ii) the government actors knew or ought reasonably to have known that enactment of the impugned legislation would affect [my] liberty interests;

(iii) doing so violated [my] Charter rights; and

(iv) [I] suffered harm as a result.

[43] It’s unknown whether Souphin’s claim will succeed, and I offer no opinion on the strength of her position. But on a motion to strike I am guided by our Court of Appeal where, in Nash v. Ontario (1995), 1995 2934 (ON CA), 27 O.R. (3d) 1 (C.A.), it wrote this:

On a motion to strike out a pleading, the court must accept the facts alleged in the statement of claim as proven unless they are patently ridiculous or incapable of proof, and must read the statement of claim generously with allowance for inadequacies due to drafting deficiencies.

[44] I believe the Gagne decision somewhat contradicts both Mackin and Ward, and is of little import to my task. If the state is clearly wrong and acts in bad faith, and without respect for Charter rights, then damages should at least be considered. It’s not accurate to say damages can’t be a functional remedy for bad government behaviour related to ill-advised legislative decisions. It would be rare, but not out of the question.

[45] Apart from the legislative decision itself (and Souphin’s subsequent parole ineligibility), sufficient facts have been plead to support a claim respecting the period following Hambly J.’s decision. This so because of the presumptive operation of the APR and how it was to apply to Souphin and others similarly situated. The government may successfully defend this aspect of the claim, but it would be inappropriate to dispose of it at this early stage.

Conclusion

[46] Souphin’s claim is properly pleaded. It contains material facts which, if true, support a cause of action, and would permit a court to award damages.

[47] The Crown’s motion to strike the amended Statement of Claim, without leave to amend, is dismissed.

[48] The time to serve and file a Statement of Defence is extended by 45 days.

Costs

[49] If costs cannot be agreed on, counsel may file brief written submissions within 30 days.

“Justice J. C. George”

Justice J.C. George

Date: February 6, 2017