COURT FILE NO.: CR-21-12-00MO

DATE: 2021-07-27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARSHALL KAZMAN Applicant

– and –

ATTORNEY GENERAL OF CANADA Respondent

Counsel: Brian Callender, for the Applicant Derek Edwards, for the Respondent

HEARD: July 26, 2021

REASONS ON HABEAS CORPUSAPPLICATION

christie j.

Overview

[1] The Applicant, Marshall Kazman, was sentenced on April 12, 2018 as follows:

Count 1 – fraud over $5000 – five years imprisonment;

Count 2 – fraud over $5000 – five years imprisonment, concurrent to count 1;

Count 3 – fraud over $5000 - five years imprisonment, concurrent to count 1;

Count 4 – fraud over $5000 - five years imprisonment, concurrent to count 1;

Count 5 – fraud over $5000 - five years imprisonment, concurrent to count 1;

Count 6 – money laundering – one year imprisonment, concurrent to count 1;

Count 7 – committing the offence of fraud over $5000 for the benefit of, or at the direction of, or in association with a criminal organization – two years imprisonment, consecutive to count 1

The total sentence was, therefore, seven years imprisonment.

[2] The commission of these offences occurred between 2007 and 2010, prior to the enactment of the Abolition of Early Parole Act, S.C. 2011, c. 11 (“AEPA”). Mr. Kazman was charged in or about June 2011. His trial commenced in 2017. He was on bail until his sentencing.

[3] Given the offence dates in this case, Mr. Kazman was automatically considered for accelerated parole review (“APR”) eligibility. It was determined that he was not eligible given the one conviction for a criminal organization offence. Mr. Kazman inquired about his eligibility for APR on January 19, 2021. In a letter dated January 25, 2021, Mr. Kazman was told that he was not eligible. The letter stated:

Mr. Kazman, pursuant to s. 125(a)(vi) of the CCRA, count #7 – s. 467.12 CCC precludes you from APR status as it is a criminal organization offence. You were sentenced for multiple offences on the same day – 2018-04-12. In compliance with section 139 CCRA, this forms one sentence of 7 years and your calculation was adjusted incorporating 709 days on bail.

In other words, Correctional Service Canada (“CSC”) viewed the sentence as an aggregate or merged sentence, pursuant to s. 139 of the Corrections and Conditional Release Act (“CCRA”) and concluded that the Applicant was not eligible for APR, given that one of the offences for which he was sentenced was a criminal organization offence.

[4] The Applicant has applied to this court, by way of habeas corpus, seeking that this court declare that he is eligible for APR at one sixth of his sentence of five (5) years for the fraud and money laundering offences. The Applicant seeks a declaration from this court declaring that, notwithstanding the 2-year criminal organization sentence, he remains eligible for APR on the fraud related / money laundering offences. Eligibility at one-third would still apply to the criminal organization offence. Therefore, it is the Applicant’s position that his parole eligibility dates would be calculated as followed: one sixth of 5 years (60 months), equals 10 months, and one third of two years (24 months), equals 8 months. Therefore, he should be eligible for parole 18 months from the sentence commencement on April 12, 2018.

Habeas Corpus

[5] The Respondent argued that the Applicant has not met the test for a habeas corpus application as he has not suffered a deprivation of liberty. The Respondent stated that the CSC’s decision was reasonable as the Applicant was convicted of a criminal organization offence and the Applicant is, therefore, clearly ineligible for APR as a result of that one conviction and sentence.

[6] In Khela v. Mission Institution, 2014 SCC 24, at para. 30, the court held that a successful habeas corpus application requires two elements:

1. A deprivation of liberty; and
2. A legitimate ground upon which to question its legality.

Once the Applicant meets these elements, the onus shifts to the Respondent to demonstrate that the deprivation of liberty was lawful.

[7] As to what constitutes a deprivation of liberty, the court in Dumas v. Leclerc Institute, 1986 38 (SCC), [1986] 2 S.C.R. 459 at p. 464 stated:

In the context of correctional law, there are three different deprivations of liberty: the initial deprivation of liberty, a substantial change in conditions amounting to a further deprivation of liberty, and a continuation of the deprivation of liberty.

[8] It is accepted that habeas corpus does not allow this court to review any and all conditions of incarceration, and the courts have questioned the applicability of habeas corpus in situations where a decision is being made on release See: May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809 at para. 28; Khela, at para. 34.

[9] The Respondent submitted that the application for habeas corpus in this case involves a review by this Court as to whether CSC properly interpreted s. 125 of the CCRA and s. 467.12 of the Criminal Code in order to determine that the Applicant was ineligible for APR. With all due respect, this mischaracterizes the argument. The Applicant did not argue that the criminal organization offence was eligible in any way, rather argued that the offences should be looked at separately so that the fraud and money laundering offences would be eligible for APR while the criminal organization offence would not be eligible.

[10] There were a number of issues not in dispute.

[11] There was no dispute that the Applicant is entitled to the benefit and protection of sections 125 and 126.1 of the CCRA as they existed prior to March 28, 2011 which is the date on which the AEPA was enacted. There was no dispute that the Applicant meets all of the criteria for APR under s. 125(1) of the CCRA on the 5-year sentence, but not the 2-year sentence.

[12] APR came into effect with the CCRA on November 1, 1992. APR differs from normal parole in three ways:

1. CSC refers APR eligible cases to the Parole Board of Canada. There is no application by the offender.
2. APR is assessed on a lower presumptive standard of review, in that there has to be no reasonable grounds to believe that the offender, if released, will likely commit an offence involving violence.
3. APR eligibility for day parole is earlier than the normal day parole eligibility; after 1/6 of a sentence instead of six months before the full parole eligibility date.

[13] The AEPA came into effect on March 28, 2011 and resulted in these advantages of accelerated parole being eliminated for all offenders.

[14] It is well settled that offenders who committed offences before the AEPA, but were not convicted and sentenced until after the AEPA was in force, are entitled to accelerated parole review. See: Lewis v. Attorney General of Canada 2015 ONCA 379, [2015] O.J. No. 2734 (C.A.) at para. 33.

[15] Therefore, Mr. Kazman would certainly be eligible for APR on the basis of the dates of his offences. The question, however, is whether the criminal organization offence disqualifies him completely from APR, even though that is only one of the seven offences for which he was sentenced.

[16] The Applicant does not argue that his criminal organization offence is somehow eligible for APR. The Applicant concedes that the two-year consecutive sentence that he received on the criminal organization offence is not eligible. However, the Applicant argued that all of his other offences and sentences, which resulted in a five-year total, are eligible as they are not precluded offences. The Applicant suggested that the offences should be considered in a distinct and separate manner for the purposes of considering any entitlements to parole.

[17] It is the view of this court that the Applicant has been deprived of liberty in the sense that he has been deprived of any opportunity for accelerated parole review. Granting of parole would most certainly lead to the Applicant’s liberty. Denying him the opportunity to be considered for parole clearly leads to a continued deprivation of his liberty. The Respondent stated that the CSC has no discretion as to whether the Applicant is eligible for APR and, therefore, this ineligibility cannot be described as a loss of residual liberty. This court respectfully disagrees with the Respondent’s characterization of what has occurred in this case. The CSC has interpreted s. 139 of the CCRA in a manner that precludes consideration for the Applicant. It is this interpretation that has resulted in the continued deprivation of the Applicant’s liberty.

[18] Habeas corpus is available to the Applicant in these circumstances.

Standard of Review

[19] The presumptive standard of review of an administrative body interpreting its own statute is reasonableness. The Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 stated:

[23] Where a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decisions other than a review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies must reflect the legislature's intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness.

[24] Parliament and the provincial legislatures are constitutionally empowered to create administrative bodies and to endow them with broad statutory powers: Dunsmuir, at para. 27. Where a legislature has created an administrative decision maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it. Where a legislature has not explicitly prescribed that a court is to have a role in reviewing the decisions of that decision maker, it can safely be assumed that the legislature intended the administrative decision maker to function with a minimum of judicial interference. However, because judicial review is protected by s. 96 of the Constitution Act, 1867, legislatures cannot shield administrative decision making from curial scrutiny entirely: Dunsmuir, at para. 31; Crevier v. Attorney General of Quebec, 1981 30 (SCC), [1981] 2 S.C.R. 220, at pp. 236-37; U.E.S., Local 298 v. Bibeault, 1988 30 (SCC), [1988] 2 S.C.R. 1048, at p. 1090. Nevertheless, respect for these institutional design choices made by the legislature requires a reviewing court to adopt a posture of restraint on review.

[25] For years, this Court's jurisprudence has moved toward a recognition that the reasonableness standard should be the starting point for a court's review of an administrative decision. Indeed, a presumption of reasonableness review is already a well-established feature of the standard of review analysis in cases in which administrative decision makers interpret their home statutes: see Alberta Teachers, at para. 30; Saguenay, at para. 46; Edmonton East, at para. 22. In our view, it is now appropriate to hold that whenever a court reviews an administrative decision, it should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness. While this presumption applies to the administrative decision maker's interpretation of its enabling statute, the presumption also applies more broadly to other aspects of its decision.

[20] In determining whether an administrative decision is reasonable, the court is not to consider what it would do in the place of the decision-maker. The Court is to review the written reasons for the decision to determine whether the decision is reasonable. (Vavilov, para. 83-84). “The court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable”. (Vavilov, para. 100)

[21] CSC relied on its interpretation of sections 125 and 139 of the CCRA in making its decision.

[22] Section 139 of the CCRA states that:

[139] (1) For the purposes of the Criminal Code, the Prisons and Reformatories Act, the International Transfer of Offenders Act and this Act, a person who is subject to two or more sentences is deemed to have been sentenced to one sentence beginning on the first day of the first of those sentences to be served and ending on the last day of the last of them to be served.

(2) This section does not affect the time of commencement, pursuant to subsection 719(1) of the Criminal Code, of any sentences that are deemed under this section to constitute one sentence.

[23] The Respondent relied on the case of Pochay v. Canada (Corrections Commissioner) [2002] O.J. No. 4658 (C.A.). In that case, the appellant was convicted of a number of offences on August 16, 2000, one of which was making an explosive substance, without lawful excuse, for the benefit of a criminal organization. He was sentenced in September 2000, part of which was one-year imprisonment consecutive for the criminal organization offence. APR was denied and the appellant brought a habeas corpus application which was unsuccessful. He then appealed to the Court of Appeal. The court stated very clearly:

[31] Ineligibility from APR under the CCRA is established where an offender is serving a sentence for any offence set out in Schedule I of the CCRA. A sentence concerning only one excludable offence is sufficient to trigger the operation of s. 125(1)(b). Accordingly, as we have concluded that the appellant is ineligible for APR because he was convicted and sentenced for an offence under s. 81(1)(a) of the Criminal Code, it is unnecessary to consider the arguments advanced by the appellant concerning his conviction for a criminal organization offence, as detailed in count fourteen of the indictment and referred to in the reasons of the sentencing judge.

The Respondent argued that this is binding authority that this court must follow.

[24] The Respondent also urged this court to consider the wording of s. 125 of the CCRA which refers to “offenders” rather than “offences”, therefore suggesting that if one offence is ineligible then the sentence is ineligible as a whole.

[25] The Applicant relied on R. v. Carrignan, 2003 19233 (ON CA), [2003] O.J. No. 349 (C.A.), wherein the Court of Appeal was considering an appeal brought by the Crown from the dismissal of its application to quash a provincial court judge’s decision, refusing to order the provision of a DNA sample. Mr. Carrignan had been convicted of sexual assault in 1986 and was sentenced to two years less one day of imprisonment. In October 1995, he was convicted of five counts of sexual interference and was sentenced to five years imprisonment. In 1996, he was sentenced to 30 days consecutive for breach of probation. In October 2000, the Crown applied for a DNA sample authorization, arguing that Mr. Carrigan, pursuant to s. 139 of the CCRA, was effectively serving a sentence of imprisonment of at least two years for one or more sexual offence. The provincial court judge declined the application holding that it was out of time. The application for certiorari was dismissed. The issue on appeal was whether s. 139 of the CCRA merged a subsequent consecutive sentence of imprisonment with the index 5-year sentence (index sexual assault offence) into one sentence to the point where each one was indistinguishable or seamless from the other. The Respondent argued that since the 5-year sentence for the sexual assault conviction had expired before the DNA warrant was issued, the Crown was out of time to obtain a DNA warrant and sample stemming from the first 5-year sentence. The argument was that the two sentences remained separate and could be treated as so. The Crown argued that the Court should treat the first sentence of five years as having merged with the second consecutive sentence of one month to create one seamless sentence to extend the time to obtain the DNA warrant. In this case, the Court of Appeal recognized the sentences as distinct in these circumstances.

[26] Even so, it is the view of this court that Carrignan does not support the Applicant’s argument in this case. While the court held that s. 139 would not apply to the DNA provisions, the court made clear the real purpose for s. 139 which is directly on point in the case at bar. The court stated:

[28] When the Parole Act was first enacted in 1958, it contained no provision comparable to s. 139 of the CCRA. However, s. 101(1) of the Criminal Law Amendment Act, 1968-69, S.C. 1968-69, c. 38 introduced the following section to the Parole Act:

11A. Where, either before or after the coming into force of this section,

(a) a person is sentenced to two or more terms of imprisonment, or

(b) an inmate who is in confinement is sentenced to an additional term or terms of imprisonment,

he shall, for all purposes of this Act, the Penitentiary Act and the Prisons and Reformatories Act, be deemed to have been sentenced, on the day on which he is so sentenced in the circumstances described in paragraph (a), or on the day on which he was sentenced to the term of imprisonment he is then serving in the circumstances described in paragraph (b), to a single term of imprisonment commencing on that day and ending on the last day that he would be subject to confinement under the longest of such sentences or under all of such sentences that are to be served one after the other, whichever is the later day.

[29] The effect of s. 11A was to deem multiple "terms of imprisonment" to be a single "term of imprisonment" for all purposes of the Parole Act, the Penitentiary Act and the Prisons and Reformatories Act. Section 11A derived from Bill C-150.1 The explanatory notes which accompanied that legislative bill following first reading on December 19, 1968 stated:

The new section 11A would make it clear that sentences of imprisonment are to be treated as a single combined sentence in calculating terms of imprisonment, periods of remission and periods of mandatory supervision [emphasis added].

… Thus, the original purpose of sentence merger was to facilitate sentence calculation for remission and parole purposes.

[27] The Court in Carrignan made it clear that this merging of sentences for such purposes survived through various changes in the legislation. The Court went on to state:

[34] In introducing the 1986 amendments, the Hon. Warren Beatty, then Solicitor General of Canada, stated with reference to s. 14:

[T]hese are housekeeping amendments designed to clarify the calculation and administration of sentences, and to facilitate the operations of the Correctional Service of Canada, the National Parole Board and the provincial correctional institutions.

Of primary concern with respect to the Parole Act which Bill C-68 addresses is that of ensuring that sentences of inmates confined in federal penitentiaries are calculated so as to accurately reflect the intent of the judge who sentenced the offender. Section 14 of the Parole Act was originally enacted to facilitate the administration of sentences by correctional authorities. The section attempts to achieve that purpose by deeming different terms of imprisonment which were imposed either at the same sittings of court or at separate occasions, and for which there would normally be different parole eligibility dates and release dates, to constitute one single sentence for which there is only one parole eligibility date and one release date. I emphasize that the deeming provision does not modify the duration of the sentences imposed by the courts.

The concern we are trying to address with this particular provision arose from an instance where an individual received two separate sentences for two separate offences. As a result of a provision in the law which was a technicality, the courts found that this individual, between the completion of his incarceration for his first sentence and incarceration for his second sentence, was allowed out on parole in the meantime. It was a provision which, on its face, made very little sense.

For example, under the present section 14, situations have arisen where a judge has sentenced an offender to a substantial term of imprisonment only to find that the offender is immediately eligible for, or indeed is released on, parole due to the effect of combining the new sentence with the old. Such anomalous results are a source of great concern both to the public and to correctional authorities, and appropriate amendments are contained in Bill C-68 to correct these unintended effects in sentence calculation [emphasis added].

[35] Subsequently, upon introduction of the CCRA in 1992, the Parole Act and the Penitentiary Act were repealed, and s. 139 of the CCRA replaced former s. 14 of the Parole Act. Three years later, in 1995, various amendments to the CCRA were enacted. By An Act to amend the Corrections and Conditional Release Act, the Criminal Code, the Criminal Records Act, the Prisons and Reformatories Act and the Transfer of Offenders Act, S.C. 1995, c. 42, s. 54, s. 139 of the CCRA was replaced with the version of that section now in force. The purpose of s. 139 of the CCRA was described to the Senate Standing Committee on Legal and Constitutional Affairs by the Director General, Corrections, of the Ministry of the Solicitor General of Canada in these terms:

To deal with the complexity of sentences and the calculation of eligibility dates that allow us to administer sentences in a rational way, the technique of sentence-merging was developed to establish a single set of eligibility dates on the total prison term comprised of however many sentences. To do that, the Corrections and Conditional Release Act, or CCRA, provides for all sentences to be merged into a single term. It does not change the way consecutive and concurrent sentences work together. That is a matter of law. However, it allows us to consider the combination of all sentences as a single prison sentence that starts on the first day of the first sentence and ends on the last day of the last sentence. It allows us to treat that combination of prison terms as a combination to calculate the dates to allow us to administer the sentence. [emphasis added].

[36] Accordingly, the historical antecedents of s. 139 of the CCRA confirm, as urged by the amicus curiae in this case, that the device of sentence merger was intended to facilitate sentence calculation for sentence administration purposes. As emphasized by the then Solicitor General of Canada in 1995, it was not intended to "change the way consecutive and concurrent sentences work together".

[28] It is of note that the court in Carrignan did make it clear that “there is nothing in s. 139(1) which purports to merge multiple sentences into one sentence for all purposes. Indeed, s. 139(2) establishes a specific limitation on the ambit of s. 139(1).” (para. 39) The Court stated:

[49] In my view, the combined effect of ss. 139(1) and (2) of the CCRA in connection with consecutive sentences is to ensure, for parole eligibility purposes, that the term of imprisonment of each consecutive sentence is totalled and parole eligibility is calculated based on the total term of the merged sentence. The intent and ambit of the sections are directed to that outcome, and to no broader purpose.

[51] It is apparent that the court in Robillard was of the view that s. 14(1) of the Parole Act did not cause sentences, whether consecutive or concurrent, to lose their distinct nature. Rather, in order to ascertain the last day an offender was subject to detention, the constituent sentences were blended so that parole eligibility could be determined. However, the "merged" sentence retained its component parts.

In addition, Justice Doherty, in concurring reasons stated:

[69] Section 139(1) of the CCRA does not, however, relate any part of the deemed single sentence to a specific offence. This is understandable given the purpose of the section. It is designed to facilitate sentence calculation for the purpose of determining matters such as the total period of incarceration imposed and parole eligibility. It is not necessary to relate any part of the deemed sentence to specific offences to achieve these purposes. The deeming provision in s. 139(1) of the CCRA does not assist in determining whether the respondent was serving a sentence for a sexual offence when this application was brought. Consequently, although I would hold that s. 139(1) of the CCRA applies to s. 487.055(1)(c), it does not answer the crucial question.

[29] In conclusion, the court held that s. 139 had a very limited application, in that sentences would be merged for purposes of calculating terms of imprisonment, periods of remission and periods of mandatory supervision. This is exactly what is occurring in the case at bar for Mr. Kazman.

Conclusion

[30] Frankly, this court appreciates the true merit in the Applicant’s submissions. Sentences are for individual offences. This is reflected in the fact that Informations and Indictments must clearly set out the specific sentence for the specific offence. It is not acceptable to provide a total sentence without specifying how that sentence is broken down for each offence. Merging of sentences for the purpose of sentence calculation and remission considerations could still be easily done on the basis suggested by the Applicant. There is still one total. The only difference would be that the offences that are eligible for APR would be calculated at 1/6, whereas ineligible offences would be calculated at 1/3. When the calculations are added together, there would still be one total sentence to be served prior to any parole consideration. It is reasonable that entitlements that flow from one conviction should not be eliminated by another conviction. Consider a circumstance where a person was convicted of 20 separate offences, only one of which was a criminal organization offence which was not eligible for APR. It is absurd to suggest that this person loses the benefit of consideration for APR on all 20 offences because of that one criminal organization offence.

[31] Administrative convenience should never be the basis upon which to deny liberty. The courts have been very clear that any ambiguity that remains in the interpretation of a statute must be resolved in favour of the liberty of the subject. See R. v. McIntosh, 1995 124 (SCC), [1995] S.C.J. No. 16; R. v. Pare 1987 1 (SCC), [1987] S.C.J. No. 75.

[32] While this court appreciates the true merit in the Applicant’s position and the logic that supports that position, this court is bound to follow the direction of the Court of Appeal in Pochay. The comments in that case are directly on point with the issue raised in this case. The court clearly held, with no ambiguity, that “a sentence concerning only one excludable offence is sufficient to trigger the operation of s. 125(1)(b).” This is binding authority in the case at bar. Given this binding authority, the administrative decision in this case can not be seen as unreasonable.

[33] For all of the foregoing reasons, and with some trepidation, this application is dismissed.

[34] Finally, with respect to costs, it is the view of this court that this is not an appropriate case for costs. The jurisdiction for awarding costs in criminal matters is extremely narrow and the threshold is very high. The issues in this case are directly related to a criminal matter and the sentence that flowed from that criminal matter. It is the view of this court that there is merit to the Applicant’s argument. It is a logical and reasoned argument. However, it is the view of this court that the Court of Appeal in Pochay is binding and must be followed, and therefore, the administrative decision in this case is reasonable.

[35] No costs are awarded.

Justice V. Christie

Released: July 27, 2021