Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING Respondent
-and-
DANIEL AMPADU Applicant
Counsel: Shain Widdifield, Nick Continelli and Lauren McMahon for the Attorney General of Canada Marianne Salih for the Applicant
HEARD: October 1, 2025
DECISION ON CONSTITUTIONAL CHALLENGE
D.E. HARRIS J.
1The Applicant argues that when an individual does not get bail after being charged with a criminal offence and is then found guilty and sentenced to the penitentiary, federal parole provisions unfairly delay their day parole as compared with a person who received bail release pending trial. The result is a violation of ss. 7 and 12 of the Charter. The Applicant argues that the provisions that bring this about, ss. 119(1)(c) and 120(1) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”), should be struck down and held to be of no force or effect.
THE ISSUE IN CONTEXT
2The prejudice the Applicant seizes on is present in every case in which a person accumulates pre-trial custody and is eventually sentenced to the penitentiary with the exception of sentences of life imprisonment. In short, because pre-trial custody is not a “sentence” and not recognized for the purpose of parole release under the provisions of ss. 119(1)(c) and 120(1) of the CCRA, an offender who had bail before being sentenced will be eligible for parole earlier than an offender who did not have bail pending trial.
3The Applicant’s situation well illustrates the point. Before pleading guilty, on September 12, 2019, the Applicant and his co-accused were arrested and charged with possession and possession for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act, S.C. 1996, c.19 (“CDSA”) after the police found 240.25 grams of cocaine and 254 grams of fentanyl in their vehicle. The police also found a Bersa Thunder 380 caliber semi-automatic pistol with a magazine containing seven rounds of ammunition and one round in the gun chamber. The Applicant was charged with various firearms offences under the Criminal Code, R.S.C., 1985, c. C-46 (“Code”).
4On September 30, 2019, the Applicant was released on house arrest with a surety. While on this bail, the Applicant was arrested in a parking lot in London, Ontario on June 8, 2021. He was charged with possession of 168 grams of fentanyl, 9.4 grams of cocaine, and 21 grams of methamphetamine for the purpose of trafficking, and for failing to comply with his bail release. The Applicant’s bail was revoked.
5On January 6, 2023, after spending 595 days in pre-sentence custody (19.5 months), the Applicant pleaded guilty to two counts of possession for the purpose of trafficking a Schedule I substance contrary to s. 5(2) of the CDSA (one count for the first offence, and one for the offence committed while on bail), and to one count of possession of a loaded firearm contrary to s. 95 of the Code.
6The sentencing judge, Durno J., sentenced the Applicant to 11.5 years prior to granting credit. At sentencing, as is typical, the Applicant was credited 29 months for the time he spent in pre-sentence custody (19.5 x 1.5 per R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575) and an additional approximately 5.5 months for onerous jail conditions (i.e., Duncan credit per R. v. Duncan, 2016 ONCA 754).
7The pre-trial custody credit therefore was a total of 34.5 months. The Applicant’s remnant sentence — the time left to serve after accounting for the 34.5 months — was 8 years and 7 months or 103 months. That was the actual sentence imposed upon him by the sentencing judge. Following s. 120(1) of the CCRA, an offender is eligible for full parole at the lesser of one third of the sentence imposed and seven years. The seven-year limit is only pertinent to very long sentences and life sentences and can be safely disregarded on this application. The basis for full parole is one-third of the sentence imposed. The basic rule for day parole contained in s. 119(1)(c) the full parole date minus six months.
8By reason of ss. 120(1) and 119(1)(c), parole is calculated strictly on the basis of the actual “sentence” imposed, not the pre-trial custody previously incurred. Using this formulation, the Applicant was eligible for full parole at 34 months (one third of 103 months). The Applicant was not eligible for day parole until he served 28 months (the 34 months until full parole minus 6 months).
9Thus, including the actual time in pre-trial custody of 19.5 months, in total the Applicant must serve approximately 48 months (19.5 + 28) before being eligible for day parole, and 54 months (19.5 + 34) before being eligible for full parole.
10In contrast, an identically situated offender who was on bail prior to receiving the same 11.5-year sentence would be required to serve only 46 months before being eligible for full parole (11.5 years or 138 months divided by one third), and six months less than this, or 40 months, before being eligible for day parole.
11In short, relative to an identically situated offender who received bail, the Applicant must remain incarcerated for an additional eight months before being eligible for day or full parole. Other illustrations inevitably lead to the same conclusion: an offender who has bail will be substantially advantaged with respect to parole eligibility in comparison with a person who does not get bail. The simple reason is that the provisions in the CCRA do not recognize pre-trial custody in calculating parole eligibility. Parole is calculated on the basis of the “sentence”, the time to be served after a finding of guilt has been made.
LEGISLATIVE PROVISIONS
Corrections and Conditional Release Act, S.C. 1992, c. 20
119 (1) Subject to section 746.1 of the Criminal Code, subsection 226.1(2) of the National Defence Act and subsection 15(2) of the Crimes Against Humanity and War Crimes Act, the portion of a sentence that must be served before an offender may be released on day parole is:
(c) where the offender is serving a sentence of two years or more, other than a sentence referred to in paragraph (a) or (b), the greater of
(i) the portion ending six months before the date on which full parole may be granted, and
(ii) six months.
120 (1) Subject to sections 746.1 and 761 of the Criminal Code and to any order made under section 743.6 of that Act, to subsection 226.1(2) of the National Defence Act and to any order made under section 226.2 of that Act, and to subsection 15(2) of the Crimes Against Humanity and War Crimes Act, an offender is not eligible for full parole until the day on which the offender has served a period of ineligibility of the lesser of one third of the sentence and seven years.
Purpose of the Correctional System
3 The purpose of the federal correctional system is to contribute to the maintenance of a just, peaceful and safe society by
(a) carrying out sentences imposed by courts through the safe and humane custody and supervision of offenders; and
(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.
Paramount Consideration
3.1 The protection of society is the paramount consideration for the Service in the corrections process.
Purpose of Conditional Release
100 The purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.
Paramount Consideration
100.1 The protection of society is the paramount consideration for the Board and the provincial parole boards in the determination of all cases.
Criminal Code, R.S.C., 1985, c. C-46
Commencement of Sentence
719 (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.
Determination of Sentence
719 (3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence, but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
Exception
719 (3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody.
THE POSITION OF THE PARTIES
12The Applicant argues that the inequality between offenders who are released on bail before their trial and those who are detained pending trial violates ss. 7 and 12 of the Charter of Rights and Freedoms (the rights not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice and not to be subjected to cruel and unusual punishment). The parole provisions violate the right to liberty under s. 7 and are overbroad by arbitrarily requiring those offenders sentenced to the penitentiary who spend time in pre-sentence custody to be incarcerated for longer before being eligible for parole. The provisions also violate the right to be free from cruel and unusual punishment under s. 12 of the Charter by subjecting federal offenders who have spent time in pre-sentence custody to arbitrarily lengthier incarceration. The violations cannot be saved under s. 1.
13The Respondent federal Crown contends that the Applicant has not established that the parole ineligibility periods set out in ss. 119(1)(c) and 120(1) of the CCRA engage, let alone violate, s. 7 of the Charter. Credit for pre-sentence custody provides parity in the length of sentences as between offenders released on bail and those who are remanded and is intended to compensate for any difference in parole ineligibility. The impugned provisions do not need to differentiate between offenders for the purpose of parole ineligibility because their different circumstances have already been accounted for. Consequently, ss. 119(1) and 120(1) of the CCRA do not engage any liberty interest under s. 7. Rather than being overbroad, ss. 119(1) and 120(1) of the CCRA prescribe eligibility periods for day and full parole based on the just and proportionate sentence imposed by the sentencing judge.
14Likewise, there is no breach of s. 12 of the Charter. There is nothing disproportionate or shocking about Parliament’s decision to protect society while balancing the rights and needs of offenders.
IS THE APPLICATION MOOT AND, IF SO, SHOULD IT BE ENTERTAINED?
15The Applicant was released on day parole before the hearing. This application is therefore moot. The leading case with respect to the exercise of discretion to hear matters that are moot continues to be Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342. There are three criteria: (1) the existence of an adversarial context; (2) judicial economy; and (3) the need to limit courts to their proper adjudicative role: Taylor v. Newfoundland and Labrador, 2026 SCC 5, at para. 44. In my view, these criteria are met in this instance. The unifying factor is that this application raises a pure question of law quite apart from any factual nuances. The facts necessary to raise the issue are replicated in any situation in which an accused is detained at the pre-trial stage and is later sentenced to a term in the penitentiary (except for a life sentence).
16With reference to the three conditions, the context is unquestionably adversarial. The Crown did not argue that they are hampered by any inconsistencies or imperfections in the evidence. The question to be decided is concrete and has not been sought to be reconfigured by the Crown. Judicial economy also strongly favours a decision being rendered. The application was fully briefed and argued. No judge will ever be in a different or better position in determining this Charter application. It is a matter of some importance, having been raised previously in R. v. Passera, 2019 ONCA 527. If the Applicant is correct, this issue will have major impact on parole eligibility across the country. Lastly, the dispute is within the ordinary adjudicative function of the courts. There is no issue of intruding into provincial jurisdiction or anything of similar kind.
17I will exercise my discretion to resolve this application despite it being moot.
THE SECTION 7 ARGUMENT
18Section 7 provides:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
DO THE PAROLE PROVISIONS DEPRIVE AN OFFENDER WHO DOES NOT RECEIVE BAIL OF LIBERTY?
19The application of s. 7 has two parts: i. Has there been a deprivation of life, liberty or security of the person?; and ii. If so, is the deprivation in accordance with the principles of fundamental justice?: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 55; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 57; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134, at para. 84.
20There is no question that whether an offender is paroled or not directly implicates liberty: R. v. Gamble, 1988 15 (SCC), [1988] 2 S.C.R. 595; Dorsey v. Canada (Attorney General), 2025 SCC 38, at para. 43. The question here is whether restricting the right to apply for parole constitutes a deprivation of liberty.
21The Respondent Crown accepts that it appears that I am bound by precedent to find a deprivation of liberty but nonetheless argues that the precedent is not what it seems. The precedent referred to is Passera which considered the same argument as made by the Applicant here. However, the constitutional attack there was launched against the Criminal Code provisions, ss. 719(1) and 719(3.1), which provide that a sentence begins when it is imposed and that pre-custody credit is restricted to one and a half days for each day in custody. The Court of Appeal, per Doherty J.A., held that the challenge misidentified the statutory framework that brought about the deprivation of liberty. It should have targeted the CCRA provisions which are at issue in this application rather than the Criminal Code sections: Passera, at para. 81.
22But in the course of considering the issue here, Doherty J.A. said, in Passera, at paras. 64-65:
Section 7 is engaged if legislation deprives an individual of the “right to liberty”. Legislation that sets preconditions to applying for parole effectively determines parole ineligibility. In doing so, it deprives offenders serving sentences of “an important residual liberty interest which is cognizable under s. 7”: R. v. Gamble, 1988 15 (SCC), [1988] 2 S.C.R. 595(S.C.C.), at p. 645; see also Cunningham, at pp. 148-51; M. (C.A.), at para. 62; Whaling, at paras. 60-62.
While I accept that the right to apply for parole, as opposed to the right to receive parole, is a contingent liberty interest, I cannot accept the respondent’s submission that it is so contingent as to be unworthy of s. 7 protection. As the statistics show, the opportunity to apply for parole translates into release from prison before the statutory release/earned remission date for many prisoners.
See also R. v. Husbands, 2024 ONCA 155, at para. 112.
23No party contended that these comments were not binding. The Crown’s position is that the liberty interest of offenders who do not get bail “has already been accounted for in the sentencing process” by awarding credit for pre-trial custody as governed by ss. 719(1) and (3.1) of the Code. The Crown submits that “[c]rediting time in pre-sentence custody at a rate of 1.5 to 1 ensures that the statutory release date of an offender remains the same whether they were in remand or on bail pending sentence”. Therefore, an offender who is detained pre-trial suffers no deprivation of liberty.
24This argument cannot be accepted. The issue here is not statutory release or the length of a sentence but parole release from a sentence. It is accepted that with respect to statutory release, pre-trial custody is adequately compensated for by the 1.5 to 1 rule in s. 719(3.1): see Summers. But the Respondent ignores the fact — although accepted elsewhere in its argument — that the CCRA provisions do not recognize pre-trial custody in the calculation of parole eligibility. As a result, parole is delayed for those offenders who do not have bail pending trial.
25The withholding of a right which, if granted, could lead to a reduction of the deprivation of liberty, triggers s. 7 scrutiny. As Doherty J.A. held, delaying the right to apply for parole, when parole can lead to release from incarceration, is a fundamental denial. Not only is the reasoning in Passera persuasive, in my view it is binding as well.
THE PRINCIPLES OF FUNDAMENTAL JUSTICE
26With respect to the principles of fundamental justice in s. 7, it was said in Carter, at para. 81:
In Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486 (the “Motor Vehicle Reference”), Lamer J. (as he then was) explained that the principles of fundamental justice are derived from the essential elements of our system of justice, which is itself founded on a belief in the dignity and worth of every human person. To deprive a person of constitutional rights arbitrarily or in a way that is overbroad or grossly disproportionate diminishes that worth and dignity.
27The court in Bedford characterised the principles of fundamental justice as involving “the basic values underpinning our constitutional order”: Bedford, at para. 96. The recognized categories which are contrary to fundamental justice are deprivations of liberty which are arbitrary, overbroad or grossly disproportionate. The Applicant identified the deprivation in this instance as one of overbreadth.
THE PURPOSE OF THE PAROLE PROVISIONS
28The first step in determining whether the deprivation of liberty is inconsistent with fundamental justice is to distill the purpose of the law. The second step is to compare the purpose or object of the law with its effects: Carter, at paras. 72-74.
29With respect to construing the purpose of the law, the Applicant proposes a multifaceted perspective on the purposes of ss. 119 and 120 of the CCRA. The general purpose is: (1) to better prepare inmates for reintegration into the community by offering a means of gradual, supervised, and controlled release; (2) to incentivize inmates to engage in rehabilitative programming and behave well in the institution vis-à-vis other inmates and prison staff; and (3) to reduce costs on the correctional system by releasing deserving inmates of parole faster, as community supervision is more cost-effective.
30According to the Applicant, the specific purposes of the parole provisions are: (1) to ensure that offenders spend some minimum time incarcerated so as to ensure that the goals of punishment and accountability are met; (2) to ensure that offenders have sufficient time to complete rehabilitative programming; (3) to ensure that correctional officials have sufficient time to assess inmates for eligibility for parole, and; (4) to ensure that the incentives of parole are not attenuated by placing the parole eligibility date too close to the statutory release date — which inmates receive regardless of good behaviour or engagement with programming.
31I would not accept these statements of purpose without modification. The direction in the authorities is to boil down the purpose of laws to a condensed, singular formulation: R. v. Sharma, 2022 SCC 39, [2022] 3 S.C.R. 147, at para. 91. For example, in Bedford, the purpose of the prohibition on bawdy houses was to prevent community harm in the nature of nuisance: Bedford, at para. 131. The purpose of the living off the avails offence was to target pimps who live parasitically off the earnings of sex trade workers: Bedford, at para. 137. The purpose of the communication for the purposes of prostitution offence was to take prostitution off the streets and prevent the nuisances it can cause: Bedford, at para. 147. In Carter, the purpose of the prohibition on assisting suicide was to protect vulnerable persons at times of weakness: Carter, at para. 74.
32Correctly and succinctly characterizing the purpose of legislation is essential to the s. 7 analysis. The analysis can be skewed by either an unduly complex and multi-faceted purpose, such as formulated by the Applicant, or an overly general purpose. If too narrow, measuring the effects in the context of the purpose, is apt to reflect some degree of incongruity. If too broad, any means of advancing the object is likely to be found permissible: Carter, at paras. 77-78; Sharma, at para. 87.
33Purpose can be gleaned from the legislation itself or from its text, context or scheme: R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 31; R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] 1 S.C.R. 180, at para. 31; Sharma, at para. 88. In this case, s. 3 of the CCRA states the purpose of the correctional system. It includes, in part, “(b) assisting the rehabilitation of offenders and their reintegration into the community as law-abiding citizens through the provision of programs in penitentiaries and in the community.” Similarly, s. 100 of the CCRA which introduces conditional release stipulates that the “purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.” Both in ss. 3.1 for the correctional system overall and 100.1 for conditional release, the CCRA makes the protection of society the “paramount consideration”.
34In my view, looking at the legislation, the purpose of the parole provisions under attack is to gradually release deserving inmates back into the community after their incarceration, thereby facilitating their reintegration into the community and minimizing the prospect that they might re-offend. The parole provisions strike a balance between facilitating individual liberty and protecting the safety of the community. However, within this, protecting public safety remains the paramount consideration.
WHAT IS THE PRINCIPLE OF FUNDAMENTAL JUSTICE IMPLICATED IN THIS CASE?
35The question under s. 7 requires the purpose of the provisions and of parole be measured against the negative effects on those inmates who do not receive bail. In reference to the values which are involved — arbitrariness, overbreadth or gross disproportionality — the Applicant concedes that targeting those who do not get bail and requiring them to serve longer periods of custody before being parole eligible is not arbitrary. The effect of the parole provisions is sufficiently connected to the purpose of the law: Carter, at paras. 83-84; Bedford, at paras. 98-100.
36The Applicant stakes his claim on the constitutional infirmity of overbreadth. It is argued that the effects on those who do not get bail are not connected to the objective. By disregarding time spent in pre-trial custody, the law requires some offenders to serve longer in post-sentence custody than is necessary to achieve the objectives of the law. If pre-sentence custody was taken into account, there would still be sufficient time to evaluate an offender’s eligibility and suitability for parole.
37The Applicant argues that in his case, counting the time he spent in pre-trial custody towards his eligibility for parole would serve all of the objectives of parole. Releasing an inmate taking into account his pre-trial custody would expedite the gradual release of an offender into the community, enhancing his positive motivation and reducing the cost to the correctional system.
38The argument continues that conversely, not counting the time the Applicant has spent in pre-sentence custody towards his eligibility for parole does nothing to serve the objectives of parole. Inmates who serve pre-trial custody are unnecessarily delayed from accessing the programming that Correctional Services Canada (CSC) touts as essential to rehabilitation and long-term public safety.
39The Applicant argues that the overbreadth of the law arises not only from the differential treatment for offenders who received bail and those denied bail, in the Applicant’s view “it arises from the fact that the ability to obtain bail is a factor that is irrelevant to an inmate’s candidacy for parole”. As the Supreme Court of Canada recognized in Summers, the ability to get bail is dependent on “totally different criteria” than the determination of a fit sentence and, the Applicant would argue, candidacy for parole. An accused is more likely to get bail if they have money to deposit, or family and friends to act as sureties, and therefore satisfies the court that they will neither flee the country nor reoffend on bail.
40In my view, there is reason to doubt that the purported flaw the Applicant has identified is truly one of overbreadth. In Carter, the overbreadth identified was that the purpose was to protect vulnerable individuals from being induced to commit suicide in a moment of weakness. The prohibition of assisted suicide for all people extended far beyond this class of persons to include not only the vulnerable but also those who were not vulnerable. It was therefore overbroad: Carter, at paras. 85-88.
41In another example, in the judgment in Bedford, the living off the avails offence was found to be overbroad because it made no distinction between those assisting and protecting sex trade workers and those exploiting them. To this extent, it departed from its purpose of preventing the exploitation and coercion of sex trade workers: Bedford, at paras. 112-19, 142.
42Although characterization is not easy, the nature of the flaw relied on by the Applicant here does not fit comfortably with the overbreadth cases. In Bedford, the court delved into the nature of overbreadth. An overbroad law is rational in some cases but overreaches in others. It has been said that overbreadth “straddles both arbitrariness and gross disproportionality”: Bedford, at paras. 113-14. At para. 117, the court added:
[I]t may be helpful to think of overbreadth as a distinct principle of fundamental justice related to arbitrariness, in that the question for both is whether there is no connection between the effects of a law and its objective. Overbreadth simply allows the court to recognize that the lack of connection arises in a law that goes too far by sweeping conduct into its ambit that bears no relation to its objective.
43The third category violating fundamental justice discussed in the s. 7 case law is gross disproportionality. The Applicant does make a gross disproportionality argument but only within the Charter prohibition in s. 12 of cruel and unusual punishment. It is argued that the offender who does not get bail pre-trial suffers a grossly disproportionate punishment by serving more time in custody before being eligible for parole. A proportionate punishment is one, in the Applicant’s view, which entitles an offender who does not get bail to be “eligible for day and full parole on a timeline that has parity with an identically situated offender who was not incarcerated prior to sentencing”.
44In the s. 7 jurisprudence, gross disproportionality refers to a law exceedingly disproportionate to the objectives of the law: Bedford, at paras. 103-4, 120-22. In Carter, at para. 89, the court held:
The inquiry into gross disproportionality compares the law’s purpose, “taken at face value”, with its negative effects on the rights of the claimant, and asks if this impact is completely out of sync with the object of the law (Bedford, at para. 125). The standard is high: the law’s object and its impact may be incommensurate without reaching the standard for gross disproportionality (Bedford, at para. 120; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 47).
45Gross disproportionality along with arbitrariness were found to be the fatal flaws in the safe injection site case of PHS Community Services Society. In relation to gross disproportionality, the court held, at para. 133:
Gross disproportionality describes state actions or legislative responses to a problem that are so extreme as to be disproportionate to any legitimate government interest: Malmo-Levine, at para. 143. Insite saves lives. Its benefits have been proven. There has been no discernable negative impact on the public safety and health objectives of Canada during its eight years of operation. The effect of denying the services of Insite to the population it serves is grossly disproportionate to any benefit that Canada might derive from presenting a uniform stance on the possession of narcotics.
46In my view, in this context, the Applicant’s challenge to the parole provisions under s. 12 of the Charter is more appropriately characterized as an aspect of the s. 7 claim. The content of the argument is identical whether under s. 7 or under s. 12 but situating it within s. 7 has the advantage of it being seen in the proper context of violations of our basic values discussed in the leading s. 7 cases. The Supreme Court of Canada has held, “[t]he standard imposed by s. 7 with respect to sentencing is the same as it is under s. 12: gross disproportionality” (emphasis in original): Safarzadeh-Markhali, at para. 72.
47The three recognized examples of government action which violate the principles of fundamental justice are not isolated, watertight compartments. The theme uniting the iterations of state action which violate the principles of fundamental justice is the lack of “instrumental functionality” between means and ends. The court elaborated in Bedford, at para. 107:
Although there is significant overlap between these three principles, and one law may properly be characterized by more than one of them, arbitrariness, overbreadth, and gross disproportionality remain three distinct principles that stem from what Hamish Stewart calls “failures of instrumental rationality” — the situation where the law is “inadequately connected to its objective or in some sense goes too far in seeking to attain it” (Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012), at p. 151).
As Peter Hogg has explained:
The doctrines of overbreadth, disproportionality and arbitrariness are all at bottom intended to address what Hamish Stewart calls “failures of instrumental rationality”, by which he means that the Court accepts the legislative objective, but scrutinizes the policy instrument enacted as the means to achieve the objective. If the policy instrument is not a rational means to achieve the objective, then the law is dysfunctional in terms of its own objective.
(”The Brilliant Career of Section 7 of the Charter” (2012), 58 S.C.L.R. (2d) 195, at p. 209 (citation omitted))
48It is important to distill the essence of the Applicant’s constitutional complaint in order to understand the alleged s. 7 flaw in the legislative framework. In my view, the focus of the Applicant’s argument is necessarily comparative; that is, between an offender who has received bail and one who has not. On its face, the plight of an offender who does not get bail is unremarkable. It may well be that there is no constitutionally mandated stage at which parole must be available or granted to an offender. However, because of its historical roots and the strong policy reasons underlying it, there would likely be substantial constitutional issues raised by removing parole entirely from the correctional system.
49The flaw the Applicant identifies only emerges when the offender with bail is juxtaposed or compared with the offender who did not get bail. It is only then that it may appear that the offender who did not get bail is disadvantaged and deprived of his liberty interest. It is the inequality with respect to parole between the two situations that forms the root foundation of the Applicant’s argument.
50In light of the comparative nature of the Applicant’s argument, I would have thought that the analytical framework which best conforms to the essence of the unfairness argued, is parity. Those who obtain pre-trial bail and those who do not are treated differently in the parole system. Offenders who are out on bail and whose incarceration is only in the form of a sentence are substantially advantaged as compared to those who have served pre-trial custody.
51The court in Passera, at para. 39, also seemed to conceive of the Applicant’s argument as one of parity or comparative fairness:
The analyses in Summers and, Carvery however, offer no support for the assertion that the kind of parity advocated for by the appellant has been recognized as a principle of sentencing integral to the imposition of a fit sentence, much less a constitutionally mandated imperative. Both before and after the enactment of the 1.5:1 cap in s. 719(3.1), the Supreme Court has insisted on a case-by-case approach to the determination of the credit to be given for pre-sentence custody. Certainly, judges must be alive to the reality that pre-sentence custody does not count towards early conditional release, and must take that reality into account. However, in doing so as part of the process of formulating a proper sentence, the jurisprudence has never looked to the parity urged by the appellant as necessary to the imposition of a fit sentence.
52In Carter, the Appellants requested that the Supreme Court recognize parity as a principle of fundamental justice. Offenders committing acts of comparable blameworthiness should receive sanctions of identical or very similar severity. The assisted suicide prohibition violated this principle, so it was argued, because it punished the provision of physician assistance in dying with the criminal sanction for homicide, “while exempting other comparable end-of-life practices from criminal sanction”. Having found that the law was overbroad, the court refrained from deciding whether parity ought to be recognized as a principle of fundamental justice. It was unnecessary to determine the question: Carter, at paras. 91-92.
53It is arguable that parity, related to the other examples of effects which are contrary to the principles of fundamental justice, ought to be recognized within s. 7 of the Charter. Like the other manifestations, the gist of the Applicant’s argument demonstrates a failure of instrumental functionality. The spill over effect on those inmates who served pre-trial custody, delaying their parole vis-à-vis those inmates who did have bail pre-trial, is unjustifiable in view of the purpose of the conditional release regime.
54The test for recognizing whether a proposed principle of fundamental justice should be recognized is outlined n R. v. D.B., 2008 SCC 25, [2008] 2 SCR 3, at para 46:
In Malmo‑Levine and Foundation for Children, this Court provided a framework for assessing whether a particular principle meets this threshold [a principle of fundamental justice]. Three criteria must be met:
It must be a legal principle.
There must be a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate.
It must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person.
55Parity of sentence is recognized in s. 718.2(b) of the Code. The Ontario Court of Appeal has said,
25 Inherent in the term "parity" and the parity principle in sentencing is the notion of comparables. Offenders. Offences. Circumstances. The parity principle expressed in s. 718.2(b) of the Criminal Code tells us that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
56In R. v. Friesen, 2020 SCC 9, it was said concerning parity:
30 All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of proportionality has long been central to Canadian sentencing (see, e.g., R. v. Wilmott, 1966 222 (ON CA), [1966] 2 O.R. 654 (C.A.)) and is now codified as the "fundamental principle" of sentencing in s. 718.1 of the Criminal Code.
31 Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. This principle also has a long history in Canadian law (see, e.g., Wilmott) and is now codified in s. 718.2(b) of the Criminal Code.
32 Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application of proportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 36-37; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 78-79).
33 In practice, parity gives meaning to proportionality…
57Applying the three-part test, parity is a long recognized legal principle. As proportionality is the fundamental rule of sentencing (see s. 718.1 of the Code), so too is parity, an expression of proportionality, fundamental to a fair and fit sentence. Lastly, although perfect parity is not achievable, the parity concept does yield a coherent, manageable standard against which to measure deprivations of liberty. For these reasons, I would have thought that parity of sentence ought to be recognized as a principle of fundamental justice.
58However, in Safarzadeh-Markhali, the Supreme Court held that sentence proportionality is not a principle of fundamental justice: Safarzadeh-Markhali, at para. 21. If that be the case, it must follow that sentence parity is also not a principle of fundamental justice.
59Therefore, in my view, the inequality between the offender with bail and the one without to some extent is best described as an argument of gross disproportionality. The negative effects of not including pre-sentence custody as counting towards parole in the Applicant’s argument falls grossly disproportionately on the offender without bail.
IS S. 7 VIOLATED BY NOT INCLUDING PRE-TRIAL CUSTODY IN THE CALCULATION OF PAROLE?
60I do not agree with the Applicant that the deprivation of liberty brought about by the delay in eligibility for parole is inconsistent with the principles of fundamental justice. There are several reasons.
61Pre-trial custody differs fundamentally from post-sentence custody. In R. v. Mathieu, 2008 SCC 21, [2008] 1 S.C.R. 723, at para. 18, the court held:
[Pre-trial custody] is, in principle, preventive rather than punitive. Pre-sentence custody cannot really be characterized as a “sentence”: if the accused is convicted, the judge does take it into account as a relevant factor in sentencing, but what if the accused is acquitted?” [Emphasis in original].
62The offender who is released on bail pending his or her trial and the offender who is detained are in fundamentally different positions. The basic difference between the two serves to refute the Applicant’s argument that there is a lack of proportionality. They are not similarly situated.
63The programming and case management critical to the conditional release regime can play no part at the stage of pre-trial custody. The accused is presumed innocent and might well be acquitted ultimately. Gathering the necessary information and assessing the inmate for release would be impractical. A the pre-trial stage, he will be housed in a provincial institution, not in the federal penitentiary where the personnel with parole expertise are employed. As Doherty J.A. said in Passera, at paras. 59-62:
The decisions made by correctional authorities relating to conditional release are based on many factors, including the nature and gravity of the offence, the degree of responsibility of the offender, and considerations relating both to the risk posed by the offender and the offender’s rehabilitative prospects: CCRA, ss. 101-102. In making those decisions, the correctional authorities are guided by s. 100 of the CCRA:
The purpose of conditional release is to contribute to the maintenance of a just, peaceful and safe society by means of decisions on the timing and conditions of release that will best facilitate the rehabilitation of offenders and their reintegration into the community as law-abiding citizens.
Conditional release assessments take time. They must have regard to the length of the sentence imposed, the time remaining on the sentence, the offender’s progress while in custody, various assessments made by correctional authorities, the offender’s release plan, and any concerns in the community into which the offender may be released.
Conditional release assessments, by their nature, cannot be undertaken until the offender has been convicted and sentenced to a specific period of time in custody: CCRA, s. 102(a). Conditional release assessments also require that correctional authorities in the institution in which the offender is serving the sentence have an adequate opportunity to accumulate the necessary information, make the necessary assessments, and fashion the necessary release plan.
In Zinck, LeBel J. described conditional release assessments in this way, at para. 19:
Nevertheless, the decision-making process under the Act [CCRA] remains much different from the judicial determination of a fit sentence. It is largely based on the ongoing observation and assessment of the personality and behaviour of the offender during his or her incarceration, which focuses on dangerousness and the offender’s ability to re-enter the community. Such a process may extend over several years and lead to decisions that are highly attentive to context and based, at least in part, on what actually happened during the incarceration of the offender. [Emphasis added; citations omitted.] [All Emphasis in original].
64Furthermore, it was stressed by Doherty J.A. that the parole regime stands separate and apart from the role of a sentencing judge. He said, in Passera, at para. 79:
[D]eterminations with respect to the eligibility for parole and the granting of parole are not part of the sentencing judge’s duties or considerations. Those decisions are assigned to the correctional authorities, acting under an entirely different statutory regime. Parole-related decisions are, by their very nature, made at a very different stage of the punishment process and serve a very different purpose.
65Justice Doherty continued on the same theme, at paras. 82-84:
In its helpful factum, the Canadian Civil Liberties Association submits:
There is no penological purpose or doctrinal justification for not treating a day in jail prior to sentencing as one would if that day were served post-sentencing.
That submission is well supported by authority insofar as it applies to the sentencing judge when determining the length of the sentence to be imposed. It is not self-evident to me that the observation has equal application to correctional authorities fixed with the obligation of deciding whether an individual should be granted some form of conditional release so that she can serve part of the sentence outside of prison. As noted by LeBel J. at para. 19 in Zinck (reproduced above, at para. 61) parole decisions are based very much on “ongoing observation and assessment of the personality and behaviour of the offender during his or her incarceration”. Given the nature of the decision to be made by the correctional authorities and the purpose animating conditional release, there may well be sound penological and doctrinal reasons for distinguishing between pre- and post-sentence custody when considering parole eligibility.
It is not difficult, given the nature of conditional release decisions, the information which must be considered in making those decisions, and the criteria governing them, to understand from a practical perspective that there will almost inevitably be some passage of time between the date of sentencing and the consideration of the offender’s suitability for conditional release. The present scheme reflects that reality. Whether it provides a constitutionally acceptable solution to that practical reality can only be determined when those sections are subject to constitutional challenge.
66In fact, a considerable amount of time is provided to prepare pre-release assessments. CSC’s Commissioner’s Directive 712-1: Pre-Release Decision-Making outlines the timeframes for the pre-release assessment process. Annex B provides that an offender’s intake parole officer or institutional parole officer will initiate the conditional release case preparation process at least six months before an inmate’s parole eligibility date. CSC requires six months to prepare the pre-release assessment, and a federally sentenced inmate must serve a minimum of six months before they are eligible for temporary absences and day parole. This amount of time is necessary to allow CSC to prepare a full assessment to provide the information necessary to present a sound opinion to the Parole Board. It must be remembered that the protection of the public is the paramount consideration with respect to conditional release under s. 100.1 of the CCRA.
67Some of the harshness endured by an offender who does not get bail can be softened by a sentencing judge taking into account the prejudice to an offender’s day parole if pre-trial custody forms a substantial part of the total custody. As quoted above, Doherty J.A. said in Passera, at para. 39: “Certainly, judges must be alive to the reality that pre-sentence custody does not count towards early conditional release and must take that reality into account” (Emphasis added).
68No attention has been paid to this pointed comment in the jurisprudence subsequent to Passera, but it bears careful consideration. When there is a considerable amount of pre-sentence custody, some mitigation may well be appropriate. This may serve to ameliorate the disadvantage borne by the offender who does not receive bail pending his or her trial. Another measure to reduce the prejudice post-sentence is the availably of temporary absences for those offenders who are deemed not to pose a substantial risk to the public.
69It has been stressed in the gross disproportionality context that the onus on the challenger is a high one. It is gross disproportionality. Although the difference in parole eligibility is significant, in context, including the difference between an offender who is released on bail and one who is not, does not attain the high level of gross disproportionality required to violate s. 7.
70One of the lessons to be taken from this application is that there are consequences which follow from criminal conduct. The Applicant lost his bail release because he committed other offences while out on his initial release. There are a host of negative impacts which befall an accused detained before trial. They are well documented in the case law. Not only is liberty taken away and the presumption of innocence suspended but there is significant collateral damage including the pressure to plead guilty and the potentially major deficits towards preparing an effective defence: R. v. Myers, 2019 SCC 18, 53 C.R. (7th) 1, at paras. 1, 22 and 27; R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at paras. 1, 66; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721, at para. 11.
71As brought to the fore by this application, the detriment to a federal inmate’s eventual parole status by a detention order is substantial. This negative impact is another sober warning to the judiciary that, because of the profound importance of bail upon an accused powers, the “cardinal rule” in this country must continue to be release, as the Supreme Court of Canada has emphasized several times in recent years: see e.g. R. v. St-Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, at para. 70. This reflection has a particularly important role to play with respect to the tertiary ground of bail.
72For these reasons, I find no infringement of s. 7 of the Charter. Section 1 is not reached.
73The application is dismissed.
D.E. HARRIS J
Released: March 5, 2026