Court File and Parties

COURT FILE NO.: CV-15-2552 DATE: 20230310

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

SOUPHIN INLAKHANA, DAMION INLAKHANA, SOMNUCK INLAKHANA and KHAMBAY INLAKHANA Plaintiffs – and – THE ATTORNEY GENERAL OF CANADA Defendant

Counsel: Kevin Egan, for the Plaintiffs Karen Watt, for the Defendant

HEARD: November 30, 2022

Reasons for Judgment

rady j.

Introduction

[1] The plaintiffs move for partial summary judgment and seek a finding that the defendant is liable for damages arising from Souphin Inlakhana’s imprisonment from November 3, 2014 to December 16, 2014, at the Grand Valley Institution for Women. In her Statement of Claim, Souphin seeks damages for false and unlawful imprisonment, or negligence, or misfeasance in public office, and Charter damages as well as damages for psychological suffering and emotional distress. She also asks for compensation for loss of income and other special damages. Souphin alleges that her rights pursuant to ss. 7, 11 and 12 of the Charter have been infringed entitling her to damages pursuant to s. 24(2). The other plaintiffs seek Family Law Act damages.

[2] The plaintiffs suggest that a determination of the quantum of damages be undertaken at a later date, perhaps by directing a reference or by trial of an issue.

[3] The defendant seeks an order dismissing the motion. It did not file a cross-motion for summary judgment in its favour but in its factum requests “a determination…that the Plaintiff…is not entitled to damages for the time she spent incarcerated from November 3, 2014 to December 16, 2014”.

[4] It is necessary to outline the underlying facts in order to provide context and in particular why the parties agree that partial summary judgment is the appropriate way to proceed.

Background

[5] On September 27, 2011, Souphin was convicted of criminal offences and sentenced to six years, four months, and 27 days in prison. The offences were committed between August 3, 2010 and March 3, 2011. During that time, the Corrections and Conditional Release Act, S.C. 1992, c.20 (CCRA) provided an accelerated parole review (APR) for non-violent offenders serving a first sentence in a federal institution. As of the offence dates, Souphin belonged to this category of offenders. APR presumptively entitled those offenders to day parole after serving the greater of six months or 1/6 of their sentence. Consequently, Souphin would have been eligible for day parole on October 21, 2012.

[6] The APR regime differed from regular parole as follows:

• The process was simplified so that an APR application was automatic. Eligible offenders were referred to the Parole Board of Canada (PBC) by the Correctional Service of Canada (CSC) without having to apply. The review was initially conduced by a single board member on a paper record without a hearing.
• The test for release was based on a presumptive standard that was lower than the standard applicable to regular parole. If the PBC determined there were “no reasonable grounds to believe that the offender, if released, is likely to commit an offence involving violence”, it had no discretion to deny release.

[7] The CSC was responsible for identifying offenders eligible for APR. Once identified, the CSC initiate the APR process by preparing cases and referring them to the PBC for review. The CSC was required to provide the PBC with certain documentation, including the offender’s court and police documents, a Correctional Plan, and Community Strategy/Assessment for Decision.

[8] On March 28, 2011, the Abolition of Early Parole Act, S.C. 2011, c.11 (AEPA) was enacted. It abolished the accelerated parole regime and had retrospective operation. Section 10(1) of the AEPA provided:

10. (1) 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.

[9] This had the effect of increasing Souphin’s sentence between the commission of the crimes and her sentencing.

[10] A constitutional challenge to the AEPA was launched. In Canada (Attorney General) v. Whaling, 2014 SCC 20, [2014] 1 S.C.R. 392, the Supreme Court ruled that the AEPA infringed offenders’ rights under s. 11(h) of the Charter. The British Columbia Court of Appeal came to the same conclusion in Liang v. Canada (Attorney General), 2014 BCCA 190.

[11] In the meantime, Souphin and nine other female offenders at the Grand Valley Institute in Ontario launched their own constitutional challenge to the AEPA. The matter came before Justice Hambly on a habeas corpus application. On November 3, 2014, he concluded that Souphin’s Charter rights had been violated and she was entitled to APR at one-sixth of her sentence. She was released on parole on December 16, 2014.

[12] Justice Hambly’s decision was upheld by the Court of Appeal and leave to appeal to the Supreme Court of Canada was denied. See Lewis et al. v. The Attorney General of Canada, 2014 ONSC 6394; aff’d 2015 ONSC 379; leave to appeal denied.

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

[14] The second is the delay in releasing Souphin from prison following Justice Hambly’s decision on November 3, 2014 until December 16, 2014, a period of 43 days. It is with respect to this second period that the motion for summary judgment relates. Paragraph 17 of the plaintiff’s amended statement of claim sets out the allegation respecting this aspect of the claim:

17. Souphin states that the violation of her section 11(i) Charter rights and her extended incarceration after a judicial finding that the legislation was constitutionally invalid, also amounted to a violation of her section 7 right to life, liberty and security of the person, to her section 9 right to be free from arbitrary detention and imprisonment, and to her section 12 right to be free from cruel and unusual punishment. The test for release under the APR was a low presumptive standard that Souphin, if released, was not likely to commit an offence involving violence. Absent reasonable grounds to believe Souphin was likely to commit a violent offence, release was mandatory. The Defendant failed to act expeditiously pursuant to the finding of Justice Hambly but instead held Souphin in prison for another 40 days, in the absence of any reasonable or factual basis to rebut the legal presumption. Continuing Souphin’s detention in the circumstances was arbitrary, negligent and constitutes a further violation of Souphin’s rights as guaranteed under the Canadian Charter of Rights and Freedoms.

[15] This paragraph stipulates that the claim respecting Souphin’s continued incarceration for 40 days (43 in fact) is based on negligence and a Charter breach. As I read the claim, the allegations of false imprisonment and misfeasance in public office (as well the first Charter breach) relate to the claim arising from the abolition of APR.

[16] The first part of the claim may be adjudicated in the context of two class proceedings that have been commenced in the Federal Court, the Liang and Whaley cases referenced above. The proposed class is defined in Liang as follows:

[44] This action is brought as a proposed class action by the named Plaintiff pursuant to Rule 334.12 of the Federal Court Rules on behalf of all prisoners who met the criteria for APR status at the time of the commission of their offences but who had that status taken away retroactively by the AEPA on March 28, 2011 and before their sentencing. The number of prisoners under the control of the Correctional Service of Canada affected by that repeal is estimated to be in the thousands, the particulars of which are known to the Defendant.

[17] Souphin is a putative member of the class. She has not yet had an opportunity to opt-in or opt-out of the class. I am advised that the claims have been certified and an appeal from the certification decision has been dismissed. I also understand that a motion is scheduled to be heard later this month in the British Columbia Supreme Court. Although I do not have a copy of the Notice of Motion, I understand that the defendant seeks a ruling on a point of law. I have no further details.

The Evidence

[18] The parties rely primarily on the affidavits of Karen Thomson of the PBC and Debra MacMillan of CSC, their cross-examinations as well as the plaintiffs’ Requests to Admit and the defendant’s Responses.

[19] Ms. Thomson is a long time employee of the Department of Public Safety. She is currently the Regional Manager for Conditional Release Programs for the Ontario/Nunavut Region of the PBC. She has a staff of 33 employees. This section of the PBC provides support to Board members by preparing offender files for decision among other responsibilities. She described the release regime in general and the APR process in particular. She deposed as follows:

11. Provisions of the CCRA establishing [APR] a parole review mechanism, came into effect in November 1992. APR was available to non-violent offenders serving a first-time sentence in a federal institution. These offenders became eligible for accelerated day parole through APR after serving the greater of six months or one-sixth of their sentence.

12. The CSC is responsible for identifying offenders eligible for APR which, in addition to the statutory criteria, applies only to offenders who were sentenced before March 28, 2011. Once an offender is identified, the CSC is responsible for initiating the APR process by preparing cases and referring them to the Parole Board for review. In particular, the CSC is responsible for providing the Parole Board with the necessary documents, including the offender’s court and police documents, Correctional Plan, and Community Strategy/Assessment for Decision.

13. With this information, the Parole Board conducts an initial APR review in-office, which is conducted by one Board member. The Parole Board may request further information or documents. In instances where parole is not directed, the case will be scheduled for a hearing with two Board members conducting the hearing.

[20] Ms. Thomson then described the process followed in Souphin’s case following the release of the Hambly J. decision:

14. …This decision only made the Plaintiff eligible for APR. Even though the APR process was no longer in the CCRA by November 3, 2014, the Ontario Superior Court of Justice determined that the Plaintiff was eligible for APR because she had been sentenced prior to March 28, 2011, when the APR process was eliminated.

15. On or about November 17, 2014, the Assessment for Decision report was completed by CSC Parole Officer.

16. On November 19, 2014, the Assessment for Decision report and the Primary Information Sharing/Procedural Safeguard Declaration were shared in the Offender Management System (OMS) with the Parole Board. Receipt of the Assessment for Decision and sharing documents initiated the Parole Board Case Review Officer file review to determine if the file was complete and ready to be assigned to a Board member for review and decision.

17. On December 9, 2014, the Case Review Officer with the Parole Board sent an email to CSC Parole Officer identifying missing documents required by the Board and documents that would need to be shared with the offender.

18. On or about December 10, 2014, the Information Sharing Update/Procedural Safeguard Declaration of the Plaintiff was received by the Parole Board, together with the missing documentation that was required to complete the review.

19. The Plaintiff was released from custody on December 17, 2014. Correctional Service Canada and the Parole Board Canada completed the process for the Plaintiff, well within established timeframes as directed and as per policy for case preparation and decisions rendered in this case.

[21] Debra MacMillan is a Manager of Assessment and Intervention with CSC. She is responsible for the assignment of cases to parole officers, assessment, monitoring and quality control of documents completed and submitted for decision to senior management of the PBC.

[22] Her affidavit mirrors that of Ms. Thomson respecting the APR process generally and then specifically for Souphin’s case. She reiterated that Justice Hambly’s decision made Souphin eligible for APR. She deposed as follows:

13. The CSC is responsible for preparing cases and refers them to the Parole Board for review to assist them in rendering a decision. In such capacity, CSC is required to complete various assessments such as a Correctional Plan or Correctional Plan Update. The following is an excerpt from CSC’s policy, Commissioner’s Directive CD 712-1, Annex A, regarding the timeframe for case preparation for APR. [Note: The Chart to which reference is made is not reproduced here. However, as I read it, the policy stipulates that this process is to be completed within three months.]

14. The Community Parole Officer completes a Community Strategy/Assessment for Decision, which addresses the offender’s release plan, location and the necessary supervision plan, together with a recommendation to the Parole Board of Canada regarding parole.

15. The steps set out in my affidavit are the time line of events that occurred in preparing the Plaintiff’s case for decision regarding her APR eligibility.

16. On or about November 5, 2014, CSC was advised that 9 offenders located at the Grand Valley Institution were identified for consideration for APR entitlement as a result of a recent Superior Court of Justice decision. The Plaintiff was one of the cases under review by the Chief Sentence Management.

17. The process required that Sentence Management complete sentence recalculations for Day Parole eligibility for these cases, as per section 119.1 of the CCRA, as the calculation formula is different between APR/non-APR offenders. For non-APR offenders, Day Parole eligibility is calculated in accordance with section 119(1) of the CCRA.

18. The Regional Sentence Manager is also required to verify the Plaintiff’s sentence calculations before the information is updated into the Offender Management System (OMS), reprinted for the file, share printed for the Parole Board of Canada and a copy provided to the offender.

19. On or about November 5, 2014, an email notification was sent to the Parole Supervisor of the London Parole Office advising that the Plaintiff met the criteria for APR.

20. On or about November 5, 2014 we received an email advising that the case management activities for the APR cases need to be completed without delay.

21. On or about November 7, 2014, an email was received advising of the completion of the Correctional Plan and requesting the Community Strategy and Assessment for Decision.

22. On or about November 19, 2014, notification was provided that the Community Strategy and Assessment for Decision were completed and shared in the OMS. I received an email notification from the Parole officer confirming that the Sharing of Information/Procedural Safeguard Declaration was sent to the PBC.

23. On or about December 10, 2014, confirmation was received that a second Sharing of Information/Procedural Safeguard Declaration of the Plaintiff was received by the PBC.

24. On December 16, 2014, based on the criteria established for APR, the Parole Board directed that the Plaintiff be released on full parole. The Decision was recorded by the PBC.

25. The Plaintiff was released from custody on December 17, 2014. Correctional Service Canada and the Parole Board Canada completed the process for the Plaintiff, well within established timeframes as directed and as per policy for case preparation and decisions rendered in this case.

[23] In addition to the foregoing, the plaintiffs rely on Responses to Requests to Admit for the following evidence:

• By November 5, 2014, Grand Valley was aware that Souphin’s Accelerated Day Parole Date was October 21, 2012 and she had not yet been granted it (paras. 15, 16);
• By November 7, 2014, all criteria for APR had been met and Souphin had no propensity to violence (para. 18);
• On November 7, 2014, Ms. MacMillan and Parole Officer Jill Hepworth recommended Souphin be released on full parole (paras. 25, 26);
• On November 19, 2014 a Community Strategy and Assessment for Decision was shared in OMS. The report had been prepared two days earlier but OMS problems delayed its inputting. There was no backup system in place (Cross-Examination of Ms. MacMillan June 21, 2012 Q 147-150);
• On November 19, 2014, a number of documents routinely included in the normal parole process were not shared and they should have been (Q 162-166; 169-170);
• Twenty days passed before a request for the missing information was made, for which no explanation has been given (Cross-Examination of Ms. Thomson; Q112-115 and Affidavit of Pia Sorri para. 41).

The Parties’ Positions

[24] Souphin submits that she was entitled to release promptly following Justice Hambly’s decision and that the defendant has no valid explanation for its delay in arranging for her release from Grand Valley. She submits that her entitlement to APR was an automatic process, and she was presumptively entitled to release unless she was deemed a risk to commit an offence involving violence. Absent that risk, the Board had no discretion but to direct her release on parole. She suggests that there was no impediment to the defendant proactively reviewing her file before the release of Justice Hambly’s decision, which should not have come as a surprise given the rulings in Liang and Whaling.

[25] Souphin further submits that as of the date of the release of the Hambly J. decision, the defendant was aware that she had not been convicted of a violent offence; there was no indication that she had a propensity to violence; and there was no reasonable basis to believe that she was likely to commit a violent offence before her sentence expired. The defendant was also aware that Souphin was eligible for accelerated day parole as of October 21, 2012 and that she still had not been granted APR.

[26] The defendant emphasizes that the Hambly J. decision triggered Souphin’s eligibility for APR, and there is a process to apply for APR that must be followed by the CSC and PBC. The defendant submits that the APR process for Souphin was completed within established policy for case preparation and decisions, while recognizing the urgency of Souphin’s situation.

The Law Respecting Summary Judgment

[27] The law respecting motions for summary judgment is well established and needs little elaboration. Hryniak v. Mauldin, 2014 SCC 7 remains the leading authority. Summary judgment may be granted where there is no genuine issue requiring a trial. No genuine issue exists if the record permits the motions judge to make necessary findings of fact and apply the law to those facts.

[28] I have concluded that in the circumstances, this case is suitable to the summary judgment process, albeit on a partial basis.

[29] A number of Ontario Court of Appeal cases have provided guidance to motion judges on how to assess whether partial summary judgment is appropriate. See NDrive Navigation Systems S.A. v. Zhou, 2022 ONCA 602; Way v. Schembri, 2020 ONCA 787; Malik v. Attia, 2020 ONCA 787; Butera v. Chown, Cairns LLP, 2017 ONCA 783.

[30] In the Malik decision, Justice Brown wrote the following:

[61] … Reduced to its essence, the decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 promoted summary judgment as a procedural tool that offers the prospect, when used in the right circumstances, to provide litigants with timely and affordable access to the civil court system: at paras. 2-5. Given that simple objective, before embarking on hearing a motion for partial summary judgment a motion judge must determine whether, in the circumstances, partial summary judgment will achieve the objectives of proportionate, timely, and affordable justice or, instead, cause delay and increase expense: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at paras. 29-34; Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135, at para. 14.

[62] When faced with a request to hear a motion for partial summary judgment, a motion judge should make three simple requests of counsel or the parties:

(i) Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties;

(ii) Show how partial summary judgment will get the parties’ case in and out of the court system more quickly;

(iii) Establish how partial summary judgment will not result in inconsistent findings by the multiple judges who will touch the divided case.

[31] Each of the three criteria are met here. The issues are narrow and discrete ones that are easily severable from the balance, which will likely be dealt with in the context of the class actions. It is a less expensive way to proceed and will achieve a quicker disposition. There is no risk of inconsistent findings given the fact that there are two separate components to Souphin’s claim, each requiring its own analysis.

[32] I have also considered whether the absence of a formal request by the defendant for summary judgment in its favour precludes it from obtaining that relief. It does not. See McClelland v. Sarazen Realty Inc., 2019 ONSC 3288. That case dealt with a plaintiff’s failure to request that relief but the principle applies equally to a defendant. The Court concluded as follows:

[17] The plaintiff did not “make” a motion for summary judgment in the formal sense of the word for the purpose of the Rules of Civil Procedure. The factum filed on behalf of the plaintiff addressed the request for summary judgment in his favour. It was not necessary for the plaintiff to serve a notice of motion for summary judgment in his favour in order to be able to request that relief in response to the defendants’ motion (King Lofts Toronto I Ltd. v. Emmons, 2013 ONSC 6113, 40 R.P.R. (5th) 1, aff’d. 2014 ONCA 215, 40 R.P.R. (5th) 26, at paras. 86-87).

The Charter

[33] Section 7 of the Charter provides that “everyone has the right to life, liberty and security of person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

[34] Section 11(i) provides that any person “charged with an offence has the right if found guilty of [an] offence and if the punishment for the offence has been varied between the time of sentencing, to the benefit of the lesser punishment”. Section 12 stipulates that everyone “has the right not to be subjected to any cruel and unusual punishment”.

[35] In Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, the Court concluded that “damages may be awarded for Charter breach under s. 24(1) where appropriate and just” (para. 4). A four-stage analysis is required, the first being a determination if a Charter right has been breached. The second requires the claimant to demonstrate that damages are just and appropriate to compensate, vindicate a right and/or deter future breaches. The next step permits the state to show that countervailing factors render an award of damages inappropriate and unjust. If it cannot, the last step is to assess damages.

[36] In that case, Mr. Ward was unlawfully detained and subjected to a strip search following his arrest for breach of the peace. His car was impounded. The trial judge found that Mr. Ward’s Charter rights had been violated, and damages were considered just and appropriate. The Crown was unable to show otherwise. Consequently, the Court upheld the damages awarded by the trial judge for his detention and strip search. It reversed the damage award respecting the vehicle impoundment.

Analysis and Disposition

[37] I have prepared a Timeline which is drawn from the evidence upon which the parties rely.

Monday, November 3, 2014 Hambly J. decision released. Wednesday, November 5, 2014 Defendant is aware of decision. Friday, November 7, 2014 Correctional Plan sent by CSC to PBC. Monday, November 17, 2014 Assessment for Decision Report input (cumulatively 8 business days later) to OMS. The file was ready to be assigned to a PBC member. Tuesday, December 9, 2014 Case Review Officer sent email to (14 business days later) CSC Parole Officer noting that documents were missing. Wednesday, December 10, 2014 Missing Documents forwarded. Tuesday, December 16, 2014 PBC directed Souphin’s release with (4 business days later) certain conditions. Wednesday, December 17, 2014 Souphin released.

[38] According to my calculations, a total of 26 business days elapsed from the time the defendant became aware of the Hambly J. decision and Souphin’s ultimate release.

[39] There is no question that the longest passage of elapsed time was between November 17, 2014 when the file was ready for assignment to a PBC member and December 9, 2014 when the missing documents were identified. A total of 14 business days elapsed and December 9, 2014.

[40] Ms. McMillan testified that the missing documents should have been provided at first instance. Ms. Thomson had no explanation for the delay. She observed that the events in question occurred some eight years previously.

[41] In response to an undertaking, the case review officer assigned to Souphin’s file had no recollection of the file or why there was a gap in the review of the documents.

[42] With that background, the first step of the analysis requires a finding whether Souphin’s Charter rights were violated. I am not persuaded that they were. There is no question that she was detained for a period of time following Justice Hambly’s decision, which made her eligible for early release. The evidence is clear that the CSC and PBC are mandated to follow a certain process. The PBC 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 her 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.

[43] I have also concluded that the defendant did not act negligently in its processing of her entitlement to APR. There can be little question that Souphin was owed a duty of care by the defendant. However, there is no evidence that it breached the standard of care required of it. At the risk of repetition, the CSC and PBC were required to complete a process before Souphin 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.

[44] The suggestion that the review process should have been proactively initiated strikes me as the counsel of perfection.

[45] In conclusion, I am not persuaded that the delay of 26 business days before Souphin’s release was negligent or constituted a violation of her Charter protected rights.

[46] The motion is dismissed. Having so concluded, it follows that the defendant is entitled to summary judgment in its favour dismissing that portion of Souphin’s claim for damages respecting the 43 days that she remained in custody following Justice Hambly’s decision until her release.

[47] I will receive brief written submissions on costs by March 31, 2023. I will leave it to counsel to organize a schedule for the exchange of submissions.

Justice H.A. Rady

Released: March 10, 2023